Late yesterday, a district courtroom in Texas issued its much-anticipated ruling in Alliance for Hippocratic Medicine v. Food and Drug Administration, a problem to the FDA’s approval of the abortion remedy mifepristone, which has been in the marketplace for over twenty years. As some hoped and others feared, the courtroom dominated in opposition to the FDA, concluding that mifepristone shouldn’t be an accepted remedy.
By an incredible coincidence, a second district courtroom, this one in Washington State, issued its own ruling in a competing mifepristone lawsuit quickly after the Texas resolution, issuing an order barring the FDA from altering the standing of mifepristone, at the least within the plaintiff states. (Apparently sufficient, this isn’t the one time we have seen dueling opinions on a high-profile health-law query issued on the identical day. The identical factor occurred with Halbig v. Burwell and King v. Burwell in 2014, creating a circuit split in a matter or hours. Go determine.)
I previewed among the arguments in every case in prior posts. Here and here I defined why the district courtroom in Texas lacked jurisdiction to listen to AHM’s claims in opposition to the FDA. Amongst different issues, the plaintiffs lack standing, didn’t file throughout the related statute of limitations, and didn’t exhaust their administrative choices. Nothing within the district courtroom’s opinion modifications my view of those arguments. If something, it reinforces them. Amongst different issues, the courtroom makes clear that the conclusion that AHM satisfies Article III standing necessities rests on outlier choices like Havens Realty (which the Supreme Courtroom could take into account overturning, or simply abandoning, subsequent time period), which progressive teams like CREW tried to make use of of their emoluments litigation.
Moreover, the opinion’s embrace of an expansive conception of equitable tolling and refusal to implement the executive exhaustion requirement relaxation on probably the most gossamer of threads—the evaluation reads extra like what one would count on in a time-limited law-school examination than a thoughtfully thought-about judicial opinion. And the invocation of Part 705 of the Administrative Process Act to justify the bizarre treatment of issuing a keep of the FDA’s 2000 approval of mifepristone is simply too intelligent by 5. It doesn’t matter what one thinks of abortion or the supply of mifepristone, this opinion is difficult to defend (and that is with out moving into the deserves of the problem).
Because it occurs, the second resolution is not any higher. For causes I defined here, the plaintiff states in that case face equal jurisdictional hurdles in demonstrating standing and exhaustion, notably insofar as they had been suing to keep up the established order (versus difficult the FDA’s current mifepristone guidelines as too restrictive). The Washington district courtroom barely engages these arguments, waiving them away with conclusory statements unaccompanied by any significant evaluation. It is sufficient to make a cynical observer assume that the opinion was rushed for launch, maybe explaining the coincidental timing. Regardless of the faults of the Texas ruling—and there are a lot of—at the least there may be substantive evaluation to critique. The Washington resolution is extra like a punt. Its one saving grace is that it doesn’t try and justify nationwide aid and as an alternative limits the impact of its injunction to the plaintiff states.
The place does this all go away us? The Texas resolution stayed the efficient date FDA’s 2000 approval of mifepristone—in impact suspending the approval (with a caveat that it will revoke the approval if the U.S. Courtroom of Appeals for the Fifth Circuit disapproves of the courtroom’s use of APA Part 705 in one other case), however has additionally stayed the efficient date of the choice by seven days to afford the federal government time to attraction. In the meantime, the Washington resolution has enjoined the FDA from “altering the established order” regarding its regulation of mifepristone as of the FDA’s January 2023 guidelines governing prescription and distribution of the drug throughout the plaintiff states. Thus, at the least inside these states, we would seem to have dueling injunctions (as happened with the DACA litigation), nearly guaranteeing fast motion from appellate courts, if not the Supreme Courtroom itself.
I hope to have extra to say about each of those choices shortly, time allowing.