The district court's order will remain on hold through 11:59 p.m. ET Wednesday, April 19, under Alito’s order. Expect another Supreme Court ruling in the mifepristone case before then.
I have a question: The Kacsmaryk order also clearly creates fetal personhood, referring specifically throughout to fetuses as humans and communicating specifically that a person's age begins at conception: "The drugs were limited to women and girls with unborn children aged seven-weeks gestation or younger."
Are we all now 9 months older than it says on our drivers' licenses? Even if there is a stay or reversal on the FDA language, doesn't this order completely change what it means to be a person?
Brilliantly written brief by the DOJ. Makes me proud of my profession, despite the clowns in the courts below.
I'm hopeful SCOTUS will put a stop to this farce, despite it being about abortion, because they won't stand for the totally-unlimited standing nonsense.
It is unclear why you would be hopeful about SCOTUS doing something useful here. We have seen that the top minds provided us by the Federalist Society (Kacsmaryk, Engelhardt, and Oldham) totally embrace the destroying the legal system by totally disregarding precedent and "just making it up"; now we move to SCOTUS who embraces the same philosophy with more Federalist Society brilliance (Gorsuch, Kavanaugh, and Barrett) like minded Alito and the totally corrupt Thomas - which have gave us the overturn of two centuries of common sense interpretation of the 2nd Amendment, the evisceration of the Civil Rights Acts (because as we were instructed state sponsored racism no longer exists as evidenced by Shelby County AL), and finally the overturn of Roe because, as the last three Federalist Society justices swore, they had no preconceived ideas on it and would follow precedent. There's nothing wrong with you having hope, but it is difficult to see why you would.
Gorsuch, Roberts, Thomas will not want to have to deal with such a broad conception of standing in future cases. Nor will Kagan, Jackson, or Sotomayor. That's six votes. Five without Thomas.
You can make an argument WRT Roberts -- it will be difficult to make such an argument WRT Gorsuch or Thomas. Gorsuch hasn't the guts to buck the extremists and Thomas has no desire to. (I'd love you to prove me wrong -- or even better for them to prove me wrong when they actually make their ruling.)
In any sane world, after briefing by the Alliance for Hypocritical Physicians, the Supremes would decide sua sponte on the merits of the standing issue and send the case back for dismissal till a woman actually hurt by mifepristone can be found to bring the suit. How many of those are to be found in that little corner of Texas, I wonder. I can see the ads in the local papers now: Wanted....
But at least I hope whatever comes down gives a HINT about what the court thinks on the standing issue.
I would think that in a sane world, the 5th Circuit would have issued an administrative injunction based on the standing issue -- but instead there were two Trump appointed/Federalist Society judges who embraced Kacsmaryck's position on standing. Given that there are three Federalist Society justices (Gorsuch, Kavanaugh, and Barrett) joining the totally corrupt Thomas, it appears that the question is going to be whether Alito wants to destroy his legacy (what's left of it) and join in.
I don't know how well the DOJ briefed the appeal to the 5th Circuit on this issue, but the brief to the supremes is crystal clear. Any wishy-washiness on standing from Scotus is going to cause them a WORLD of hurt in terms of caseload. Everyone and his brother and sister will be claiming standing based on speculative and not-urgent--not to mention specious-- "injuries" and the court , no matter how it words its approval here, along with will spend YEARS trying to distinguish all the fine points of the different cases.
Because the Supremes would be defining--or redefining--the Cases and Controversies clause of the Constitution, any sloppy ruling they make will also affect courts down to the local night court or small claims level. Or at the state level: can I sue whoever has gerrymandered a city near me because maybe I'll want to buy a house there? Can I sue the neighbors three doors down because their ugly fence encroaches on another neighbor's property line? Can I sue to make a distant neighbor take down a tree that interferes with my view because it might tip over and hurt another neighbor's fence and possibly make it easier for rats to reach my yard?
I'm not a lawyer (your credentials are impressive), so I don't have the insight your do -- again which makes your response very much appreciated. You identify some interesting potential outcomes if SCOTUS does not handle the standing issue carefully.
What some other writers have indicated is that SCOTUS could accept the "standing" as put forward by Kacsmaryk but restrict it to FDA issues (don't know if this is feasible or not -- your thoughts?). Other writers have indicated that "standing" has frequently been abused by the courts to pick and choose which cases they wish to hear with little consistency in their rulings; I can't say this is true or not. It does seem that nothing prevents filings with questionable standing today, so it is unclear why SCOTUS muddying the water would change the system substantially. Accepting what you said in your comment, what do you think of what these other writers have proposed?
Lack of standing is basically the way a judge says to a litigant "that's none of your business." (I just wish there was some way to apply it to legislators). I don't see how one could "restrict" it to FDA issues--it is a requirement that must be in place before one can get to any underlying issues. It is a Constitutional issue: to litigate there must be a Case and Controversy (Article III, Section 2) and courts have pretty well forever held that this must mean
1.the the plaintiff has an actual injury**, and
2. that injury an be somehow connected with the actions of the defendant, and
3. that there is is some relief available if plaintiff prevails. (The last part isn't the direct problem in this case if you accept that any court has the ability to second guess the FDA's actions without actually showing those actions were "arbitrary and capricious." In fact, the actions here were based on YEARS of data. )
The first person to whom the standing restriction was applied was apparently--George Washington. He wanted an advisory opinion about something and the court said "no can do."
(Article III is about federal courts, but it spells out just about every kind of case one could be involved in at the federal court level. I'd guess the 14th Amendment applies it to the states, but I'm not a scholar of that.)
The main aspect of standing law involved here is that plaintiffs' injury must be actual--not speculative, not "in the future". That's what has us law types so hornswoggled. There are no allegations that these plaintiffs have ever encountered the "harms" they envision. Those harms were basically "we might have to treat someone who used it even though we didn't prescribe it" and "we might have to spend time doing research about how to do that." There is, however, a law that lets doctors not have to treat on grounds of conscience, and if they don't have to, why study? As to the idea that harm might come to an "unborn person," unfortunately there were none of those as plaintiffs. Nor were there any plaintiffs who had been injured themselves by the drug. ***
A lot of fuss was made about standing when Texas took a case to the supremes about how another state (Wisconsin, I think) conducted its elections. The supremes then quite rightly said "just how is that any of your business?" That may be where the writers got the "pick and choose" idea. In fact, under the Cases and Controversies" clause judges are SUPPOSED to pick and choose and eliminate those cases that don't fit. Whether or not they fit can always be appealed. The case law is pretty consistent on what the requirements are (by case law, I mean pronouncements of appellate courts or the supremes which have precedential value).
I wasn't a litigator and so have little personal experience with the courts themselves. I SUPERVISED the outside counsel litigators for my company, but the nature of the disputes rarely if ever involved standing. I can't recall any, actually. If you can find some of those criticism of standing as "pick and choose-dom" I'd like to see them. There are some general rules beyond the basic injury idea--the one I've encountered most is that taxpayers can't sue to stop litigation just because their taxes might go up. Again, I'm not particularly expert in that side of standing.
But for the supremes to say that standing was OK in this case, they would have to abrogate the idea that the case or controversy has to involve an actual injury, not a speculative one. Imagine a neighbors suing to enjoin you from getting a third car because he MIGHT have more trouble parking on the street.
Imagine someone suing to prevent sale of X brand of cars because OTHER people had brake issues or even, IF that someone bought the car, they might have brake issues themselves. That would be an analogy to what judge Katzenjammer thought supported standing.
I will be interested how the current supremes support Judge K without opening the country wide to speculative suits base solely on their dislike of what someone else is doing.
The DOJ's brief has an excellent, if sometimes technical, discussion of standing.
**There CAN be cases where the human being suing is not the person harmed--that is when said human being is in a guardianship type situation representing the person harmed.
***There is a remedy for a whole lot of people injured themselves by something--it's called the class action. This people supporting this suit COULD have avoided the standing problem by getting together a bunch of women who claimed they had been harmed. I'm guessing that they couldn't FIND any who wanted to bother, at least not in that part of Texas.
Again, I really appreciate your response -- I'm sure you are busier than I am and therefore it is an honor for you to take the time to educate me on this issue!
I have found the discussions of the issues brought up in this case extremely interesting, and since there have been relatively plentiful articles written, I have found much "fodder" for thought. ;)
First, I wanted to say that I read with great interest your extensive post -- I hope I got the appropriate value for the time you invested in it. I had not previously seen a link to (or read any of) the DOJ brief -- I was impressed by the writing as it made sense and was intelligent (not necessarily something that has been the case from K or the 5th Circuit in all cases).
WRT standing, an article that I read on this was by Nicholas Little of The Center For Inquiry:
In the interests of space I won't quote him here, but starting in the 8th paragraph he addresses how standing is being treated in the federal system in many cases at this time, and it appears that it is not unusual for groups to file cases with specious arguments for standing. If this is the case (I personally don't have the necessary background to weigh in) one wonders if a bad SCOTUS action here would necessarily change the frequency of specious cases filed. (Perhaps a more effective deterrent to specious fillings would be disciplinary action for lawyers who file specious cases, but it appears that such discipline is so rare -- e.g., Trump's frivolous suits -- as to be meaningless.)
WRT the idea of SCOTUS taking the case, supporting Kacsmaryk, and then just declaring that the case can't be used as a precedent, it would seem to be appropriate to recall the Republicans have done something like this before -- Bush V Gore. ;) Rinse and repeat anyone?
Good article. But I think there would be a lot MORE speculative suits. What the article seems to be saying is that as to the author's practice too many judges are DENYING because of standing, while he sees a disturbing trend in the religious cases of allowing it on really shaky grounds. If standing is officially loosened, it will be the other way round --more speculative suits--even in the realm of "religious cases" and certainly in the broader realm.
One of his examples is about a slightly different aspect of the Case and Controversies law--mootness. I don't know if the coach actually moved out of state, but he definitely did not reapply for his job and then sued for being put on leave. (His 2 million "settlement" was about attorney fees--he wasn't suing for monetary damages). That case bugs me most because its reasoning involved misstating the facts; the coach wasn't praying silently on the sidelines--he was gathering the whole team in "prayer" in the middle of the field.
But I'm afraid that the "religious freedom" cases where a "sincere religious belief" justifies breaking a law of general application to everyone is a slope down which we are already rapidly slipping. I keep wondering if a doctor could get out of an abortion charge by claiming he had a sincere religious belief that the fetus he aborted hadn't yet reached human status. But we are likelier to see "fetal personhood" which has its own interesting consequence--anyone who had a miscarriage of a "fetal person" would then have an extra dependent for income tax purposes for that year. Not only that: a parent could sue on behalf of its hopelessly unviable "fetal person" on the grounds that causing it to come to term would cause it intolerable suffering before dying naturally because, for example, it lacks a part of the brain that allows breathing.
The Montana case is another case of mootness and weirdness--the Montana Supreme Court had thrown out the whole program that spent tax dollars on private schools. But plaintiffs took it to the supremes, who said that the Montana supreme court decision was unconstitutional--leaving what? A rule that a state HAS to supply tax money to religious schools even if it doesn't supply tax money at all to private schools? The whole "taxes spent on religious schools" bit also illustrates another problem of standing: simply being a taxpayer doesn't give you standing to protest a school voucher program--even if that voucher program is ONLY for religious schools--we'll see one of those coming soon to a red state near you, I'm betting. On school voucher issues, I'm just hoping the Church of Satan (a bonafide religion espousing purely secular ideals and nothing to do with Satan but the name) will start opening schools and insist parents can use vouchers for it. The twisted panties will overwhelm Fox.
The supremes can't really say that their decisions can't be used as precedent. What they often do is say their cases are to be narrowly construed and limited to the facts of the particular dispute. But what often is way more important than the particular result is the way the court got to it--its reasoning (or lately, lack of it). Scalia in the gun case specifically said it didn't apply to automatic weapons. So much for THAT narrowing. The Dobbs decision is "only about abortion" till some state decides to ban gay marriage, because the foundation of Roe AND gay marriage was the idea of substantive due process and Dobbs squashed that.
I've gotten rather off "standing" here but I do agree with the article writer that it itself is being administered in favor of religious beliefs. I fear impending theocracy. Ironically, I myself wouldn't have standing to protest full blown theocracy because I doubt I'll be around when it finally hits. But I worry for my grandchildren.
As a resident of Washington (though the only family members with a remote interest in mifepristone are my grandchildren) I'm much interested in use by judge Katzenjamer of a nationwide injunction. I know they have been used, but at least in the 9th Circuit they are limited to "emergency" situations. Can the 9th Circuit simply rule that a nationwide injunction is void as to the 17 states covered by the Washington decision. This seems to me to be more than just a "conflict between the circuits" on the validity or non-validity of the FDA approval. Does the FDA have the POWER to stop the distribution per the latest FDA approvals in those 17 states? Can the manufacturer simply ship the drug to the states under the already enjoined complete ban on them, and if so, who exactly can stop the sale by pharmacies of the drugs without the original rules?
I've heard that several states have already ordered a supply of mifepristone. What exactly will happen if SCROTUS declines to lift the injunction fully and a pharmacy in WA choses to sell it with just a prescription? Who will go after the pharmacy? Does Texas have jurisdiction over a purely local pharmacy? Can the FDA go after the pharmacy when it has been ordered to use the current rules?
Under Dobbs a state itself can ban the use of mifepristone and probably already has. Interestingly a lot of those laws are only against the provider, not the woman herself. But what happens if a local WA doctor writes a prescription for Texas Woman X, she give me her best friend a power of attorney to fill that prescription, and I then mail Texas Woman the pills. If the only impediment to this is the Comstock Act, can state prosecutors come after me, who was last in Texas decades ago? And won't the US Attorneys in Texas have to a) find Texas woman and prove she took it b) find me (Texas Woman has a 5th Amendment Right to refuse to name me, right?) and then do what? Prosecute a 79 year old grandma? Do you think the DOJ in Texas will spend much time investigating the issue?
I am aware that the Comstock act has been interpreted to cover illegal abortion drugs. Some of the anti-abortion laws that exempt the woman herself from prosecution seem to me to make PROVIDING an abortion illegal but not actually HAVING one. So how is legally sending a drug to such a woman come under the heading of providing something that as to HER isn't illegal? (Gotta admit I've only noticed this "woman is exempt" rule in a few places).
I guess we'll know in the next few days. Per Alito, till Wednesday.
I am not optimistic that the Supreme Court, given its current makeup, will do the right thing and completely stay Judge Kacsmaryk's legally-ridiculous decision.
Of course they won't -- sadly, these "justices" don't care about the legal system or the country -- they care only about their own power (as they showed on guns, the Civil Rights Acts, Roe, etc). Don't hold your breath for any Federalist Society judge to do anything but advance their political agenda.
The filing, aside from its brilliant BS-dissolving argument, is remarkable for being set in Courier 10 font. Don’t see that often.
Don't see it often anymore. Courier 10 is old-skool federal courts. Only font ever 20/30 years ago.
All applications from the SG’s office come in that format, for what it’s worth.
I have a question: The Kacsmaryk order also clearly creates fetal personhood, referring specifically throughout to fetuses as humans and communicating specifically that a person's age begins at conception: "The drugs were limited to women and girls with unborn children aged seven-weeks gestation or younger."
Are we all now 9 months older than it says on our drivers' licenses? Even if there is a stay or reversal on the FDA language, doesn't this order completely change what it means to be a person?
Great question!
Brilliantly written brief by the DOJ. Makes me proud of my profession, despite the clowns in the courts below.
I'm hopeful SCOTUS will put a stop to this farce, despite it being about abortion, because they won't stand for the totally-unlimited standing nonsense.
It is unclear why you would be hopeful about SCOTUS doing something useful here. We have seen that the top minds provided us by the Federalist Society (Kacsmaryk, Engelhardt, and Oldham) totally embrace the destroying the legal system by totally disregarding precedent and "just making it up"; now we move to SCOTUS who embraces the same philosophy with more Federalist Society brilliance (Gorsuch, Kavanaugh, and Barrett) like minded Alito and the totally corrupt Thomas - which have gave us the overturn of two centuries of common sense interpretation of the 2nd Amendment, the evisceration of the Civil Rights Acts (because as we were instructed state sponsored racism no longer exists as evidenced by Shelby County AL), and finally the overturn of Roe because, as the last three Federalist Society justices swore, they had no preconceived ideas on it and would follow precedent. There's nothing wrong with you having hope, but it is difficult to see why you would.
Gorsuch, Roberts, Thomas will not want to have to deal with such a broad conception of standing in future cases. Nor will Kagan, Jackson, or Sotomayor. That's six votes. Five without Thomas.
You can make an argument WRT Roberts -- it will be difficult to make such an argument WRT Gorsuch or Thomas. Gorsuch hasn't the guts to buck the extremists and Thomas has no desire to. (I'd love you to prove me wrong -- or even better for them to prove me wrong when they actually make their ruling.)
In any sane world, after briefing by the Alliance for Hypocritical Physicians, the Supremes would decide sua sponte on the merits of the standing issue and send the case back for dismissal till a woman actually hurt by mifepristone can be found to bring the suit. How many of those are to be found in that little corner of Texas, I wonder. I can see the ads in the local papers now: Wanted....
But at least I hope whatever comes down gives a HINT about what the court thinks on the standing issue.
I would think that in a sane world, the 5th Circuit would have issued an administrative injunction based on the standing issue -- but instead there were two Trump appointed/Federalist Society judges who embraced Kacsmaryck's position on standing. Given that there are three Federalist Society justices (Gorsuch, Kavanaugh, and Barrett) joining the totally corrupt Thomas, it appears that the question is going to be whether Alito wants to destroy his legacy (what's left of it) and join in.
I don't know how well the DOJ briefed the appeal to the 5th Circuit on this issue, but the brief to the supremes is crystal clear. Any wishy-washiness on standing from Scotus is going to cause them a WORLD of hurt in terms of caseload. Everyone and his brother and sister will be claiming standing based on speculative and not-urgent--not to mention specious-- "injuries" and the court , no matter how it words its approval here, along with will spend YEARS trying to distinguish all the fine points of the different cases.
Because the Supremes would be defining--or redefining--the Cases and Controversies clause of the Constitution, any sloppy ruling they make will also affect courts down to the local night court or small claims level. Or at the state level: can I sue whoever has gerrymandered a city near me because maybe I'll want to buy a house there? Can I sue the neighbors three doors down because their ugly fence encroaches on another neighbor's property line? Can I sue to make a distant neighbor take down a tree that interferes with my view because it might tip over and hurt another neighbor's fence and possibly make it easier for rats to reach my yard?
Very much appreciate your response!
I'm not a lawyer (your credentials are impressive), so I don't have the insight your do -- again which makes your response very much appreciated. You identify some interesting potential outcomes if SCOTUS does not handle the standing issue carefully.
What some other writers have indicated is that SCOTUS could accept the "standing" as put forward by Kacsmaryk but restrict it to FDA issues (don't know if this is feasible or not -- your thoughts?). Other writers have indicated that "standing" has frequently been abused by the courts to pick and choose which cases they wish to hear with little consistency in their rulings; I can't say this is true or not. It does seem that nothing prevents filings with questionable standing today, so it is unclear why SCOTUS muddying the water would change the system substantially. Accepting what you said in your comment, what do you think of what these other writers have proposed?
Lack of standing is basically the way a judge says to a litigant "that's none of your business." (I just wish there was some way to apply it to legislators). I don't see how one could "restrict" it to FDA issues--it is a requirement that must be in place before one can get to any underlying issues. It is a Constitutional issue: to litigate there must be a Case and Controversy (Article III, Section 2) and courts have pretty well forever held that this must mean
1.the the plaintiff has an actual injury**, and
2. that injury an be somehow connected with the actions of the defendant, and
3. that there is is some relief available if plaintiff prevails. (The last part isn't the direct problem in this case if you accept that any court has the ability to second guess the FDA's actions without actually showing those actions were "arbitrary and capricious." In fact, the actions here were based on YEARS of data. )
The first person to whom the standing restriction was applied was apparently--George Washington. He wanted an advisory opinion about something and the court said "no can do."
(Article III is about federal courts, but it spells out just about every kind of case one could be involved in at the federal court level. I'd guess the 14th Amendment applies it to the states, but I'm not a scholar of that.)
The main aspect of standing law involved here is that plaintiffs' injury must be actual--not speculative, not "in the future". That's what has us law types so hornswoggled. There are no allegations that these plaintiffs have ever encountered the "harms" they envision. Those harms were basically "we might have to treat someone who used it even though we didn't prescribe it" and "we might have to spend time doing research about how to do that." There is, however, a law that lets doctors not have to treat on grounds of conscience, and if they don't have to, why study? As to the idea that harm might come to an "unborn person," unfortunately there were none of those as plaintiffs. Nor were there any plaintiffs who had been injured themselves by the drug. ***
A lot of fuss was made about standing when Texas took a case to the supremes about how another state (Wisconsin, I think) conducted its elections. The supremes then quite rightly said "just how is that any of your business?" That may be where the writers got the "pick and choose" idea. In fact, under the Cases and Controversies" clause judges are SUPPOSED to pick and choose and eliminate those cases that don't fit. Whether or not they fit can always be appealed. The case law is pretty consistent on what the requirements are (by case law, I mean pronouncements of appellate courts or the supremes which have precedential value).
I wasn't a litigator and so have little personal experience with the courts themselves. I SUPERVISED the outside counsel litigators for my company, but the nature of the disputes rarely if ever involved standing. I can't recall any, actually. If you can find some of those criticism of standing as "pick and choose-dom" I'd like to see them. There are some general rules beyond the basic injury idea--the one I've encountered most is that taxpayers can't sue to stop litigation just because their taxes might go up. Again, I'm not particularly expert in that side of standing.
But for the supremes to say that standing was OK in this case, they would have to abrogate the idea that the case or controversy has to involve an actual injury, not a speculative one. Imagine a neighbors suing to enjoin you from getting a third car because he MIGHT have more trouble parking on the street.
Imagine someone suing to prevent sale of X brand of cars because OTHER people had brake issues or even, IF that someone bought the car, they might have brake issues themselves. That would be an analogy to what judge Katzenjammer thought supported standing.
I will be interested how the current supremes support Judge K without opening the country wide to speculative suits base solely on their dislike of what someone else is doing.
The DOJ's brief has an excellent, if sometimes technical, discussion of standing.
The discussion starts on page 20. https://www.supremecourt.gov/DocketPDF/22/22A902/263491/20230414103258942_Alliance%20for%20Hippocratic%20Med%20%20application.pdf
________________________________________________________
**There CAN be cases where the human being suing is not the person harmed--that is when said human being is in a guardianship type situation representing the person harmed.
***There is a remedy for a whole lot of people injured themselves by something--it's called the class action. This people supporting this suit COULD have avoided the standing problem by getting together a bunch of women who claimed they had been harmed. I'm guessing that they couldn't FIND any who wanted to bother, at least not in that part of Texas.
Again, I really appreciate your response -- I'm sure you are busier than I am and therefore it is an honor for you to take the time to educate me on this issue!
I have found the discussions of the issues brought up in this case extremely interesting, and since there have been relatively plentiful articles written, I have found much "fodder" for thought. ;)
First, I wanted to say that I read with great interest your extensive post -- I hope I got the appropriate value for the time you invested in it. I had not previously seen a link to (or read any of) the DOJ brief -- I was impressed by the writing as it made sense and was intelligent (not necessarily something that has been the case from K or the 5th Circuit in all cases).
WRT standing, an article that I read on this was by Nicholas Little of The Center For Inquiry:
https://centerforinquiry.org/blog/kacsmaryks-radical-ruling-leaves-nothing-left-of-standing/
In the interests of space I won't quote him here, but starting in the 8th paragraph he addresses how standing is being treated in the federal system in many cases at this time, and it appears that it is not unusual for groups to file cases with specious arguments for standing. If this is the case (I personally don't have the necessary background to weigh in) one wonders if a bad SCOTUS action here would necessarily change the frequency of specious cases filed. (Perhaps a more effective deterrent to specious fillings would be disciplinary action for lawyers who file specious cases, but it appears that such discipline is so rare -- e.g., Trump's frivolous suits -- as to be meaningless.)
WRT the idea of SCOTUS taking the case, supporting Kacsmaryk, and then just declaring that the case can't be used as a precedent, it would seem to be appropriate to recall the Republicans have done something like this before -- Bush V Gore. ;) Rinse and repeat anyone?
Thanks for the nice words.
Good article. But I think there would be a lot MORE speculative suits. What the article seems to be saying is that as to the author's practice too many judges are DENYING because of standing, while he sees a disturbing trend in the religious cases of allowing it on really shaky grounds. If standing is officially loosened, it will be the other way round --more speculative suits--even in the realm of "religious cases" and certainly in the broader realm.
One of his examples is about a slightly different aspect of the Case and Controversies law--mootness. I don't know if the coach actually moved out of state, but he definitely did not reapply for his job and then sued for being put on leave. (His 2 million "settlement" was about attorney fees--he wasn't suing for monetary damages). That case bugs me most because its reasoning involved misstating the facts; the coach wasn't praying silently on the sidelines--he was gathering the whole team in "prayer" in the middle of the field.
But I'm afraid that the "religious freedom" cases where a "sincere religious belief" justifies breaking a law of general application to everyone is a slope down which we are already rapidly slipping. I keep wondering if a doctor could get out of an abortion charge by claiming he had a sincere religious belief that the fetus he aborted hadn't yet reached human status. But we are likelier to see "fetal personhood" which has its own interesting consequence--anyone who had a miscarriage of a "fetal person" would then have an extra dependent for income tax purposes for that year. Not only that: a parent could sue on behalf of its hopelessly unviable "fetal person" on the grounds that causing it to come to term would cause it intolerable suffering before dying naturally because, for example, it lacks a part of the brain that allows breathing.
The Montana case is another case of mootness and weirdness--the Montana Supreme Court had thrown out the whole program that spent tax dollars on private schools. But plaintiffs took it to the supremes, who said that the Montana supreme court decision was unconstitutional--leaving what? A rule that a state HAS to supply tax money to religious schools even if it doesn't supply tax money at all to private schools? The whole "taxes spent on religious schools" bit also illustrates another problem of standing: simply being a taxpayer doesn't give you standing to protest a school voucher program--even if that voucher program is ONLY for religious schools--we'll see one of those coming soon to a red state near you, I'm betting. On school voucher issues, I'm just hoping the Church of Satan (a bonafide religion espousing purely secular ideals and nothing to do with Satan but the name) will start opening schools and insist parents can use vouchers for it. The twisted panties will overwhelm Fox.
The supremes can't really say that their decisions can't be used as precedent. What they often do is say their cases are to be narrowly construed and limited to the facts of the particular dispute. But what often is way more important than the particular result is the way the court got to it--its reasoning (or lately, lack of it). Scalia in the gun case specifically said it didn't apply to automatic weapons. So much for THAT narrowing. The Dobbs decision is "only about abortion" till some state decides to ban gay marriage, because the foundation of Roe AND gay marriage was the idea of substantive due process and Dobbs squashed that.
I've gotten rather off "standing" here but I do agree with the article writer that it itself is being administered in favor of religious beliefs. I fear impending theocracy. Ironically, I myself wouldn't have standing to protest full blown theocracy because I doubt I'll be around when it finally hits. But I worry for my grandchildren.
As a resident of Washington (though the only family members with a remote interest in mifepristone are my grandchildren) I'm much interested in use by judge Katzenjamer of a nationwide injunction. I know they have been used, but at least in the 9th Circuit they are limited to "emergency" situations. Can the 9th Circuit simply rule that a nationwide injunction is void as to the 17 states covered by the Washington decision. This seems to me to be more than just a "conflict between the circuits" on the validity or non-validity of the FDA approval. Does the FDA have the POWER to stop the distribution per the latest FDA approvals in those 17 states? Can the manufacturer simply ship the drug to the states under the already enjoined complete ban on them, and if so, who exactly can stop the sale by pharmacies of the drugs without the original rules?
I've heard that several states have already ordered a supply of mifepristone. What exactly will happen if SCROTUS declines to lift the injunction fully and a pharmacy in WA choses to sell it with just a prescription? Who will go after the pharmacy? Does Texas have jurisdiction over a purely local pharmacy? Can the FDA go after the pharmacy when it has been ordered to use the current rules?
Under Dobbs a state itself can ban the use of mifepristone and probably already has. Interestingly a lot of those laws are only against the provider, not the woman herself. But what happens if a local WA doctor writes a prescription for Texas Woman X, she give me her best friend a power of attorney to fill that prescription, and I then mail Texas Woman the pills. If the only impediment to this is the Comstock Act, can state prosecutors come after me, who was last in Texas decades ago? And won't the US Attorneys in Texas have to a) find Texas woman and prove she took it b) find me (Texas Woman has a 5th Amendment Right to refuse to name me, right?) and then do what? Prosecute a 79 year old grandma? Do you think the DOJ in Texas will spend much time investigating the issue?
I am aware that the Comstock act has been interpreted to cover illegal abortion drugs. Some of the anti-abortion laws that exempt the woman herself from prosecution seem to me to make PROVIDING an abortion illegal but not actually HAVING one. So how is legally sending a drug to such a woman come under the heading of providing something that as to HER isn't illegal? (Gotta admit I've only noticed this "woman is exempt" rule in a few places).
I guess we'll know in the next few days. Per Alito, till Wednesday.
I am not optimistic that the Supreme Court, given its current makeup, will do the right thing and completely stay Judge Kacsmaryk's legally-ridiculous decision.
Of course they won't -- sadly, these "justices" don't care about the legal system or the country -- they care only about their own power (as they showed on guns, the Civil Rights Acts, Roe, etc). Don't hold your breath for any Federalist Society judge to do anything but advance their political agenda.
Thanks, Russell!