There are so many problems with the federal case in Texas challenging the approval of mifepristone, the first of two drugs given as part of a medication abortion. On the procedural side of things, just to name a few, the statute of limitations has long run out, the plaintiffs have not exhausted their administrative remedies, they haven’t identified a provision of law that has been violated, and their claimed injury makes no sense. On substance, again just to name a few, mifepristone is one of the safest drugs on the market, pregnancy is a medical condition for which the FDA can approve drugs, and the act on which the case relies has been basically a dead letter for a century. This case really is frivolous and should garner no real attention.
But, of course, we’re talking about this case repeatedly because of the real fear that the plaintiffs successfully hand-picked one of the few federal judges in the country who will ignore all this and rule in their favor. So, there is no such thing as giving this case too much scrutiny. And in that vein, it’s worth explaining how the release of the transcript from last Wednesday’s argument reveals yet another flaw with the case—lack of redressability—that should end the case immediately.
To understand this problem, we have to first understand the harm that plaintiffs are alleging that they suffer. Every litigant who comes into federal court needs to establish that they are injured in some way. Here, plaintiffs are doctors who claim that mifepristone leads to them having to treat patients with complications. Put aside for our purposes here just how insane that argument is—doctors treat people with complications related to medicine all the time, it’s their job. For now though, just appreciate that this is their claimed harm.
As their lawyer explained at argument, the doctors “allege that they treated women who were presenting emergency medical situations” after using mifepristone. And that doing so, their lawyer said, “severely impacts the ability of doctors to practice medicine according to their medical oaths” because treating these patients is “more time-consuming” and “consumes an enormous amount of resources.” The lawyer later described two situations where two of the plaintiffs say that they had to save the life of a patient after they had taken mifepristone.
In the complaint, there are more harms claimed. Plaintiffs claim patients suffer from complications due to medication abortion as well as being deprived of knowledge about what is really happening to them. They claim that doctors suffer, not only from having to treat complications (as discussed at the hearing), but also because medication abortion demeans the practice of medicine, ruins the doctor-patient relationship, and forces anti-abortion doctors to complete abortions against their morals. And for anti-abortion physician organizations, medication abortion forces them to divert resources away from their members because they are forced to spend time challenging the legality of these drugs. A principal focus of the hearing, however, was this claim that doctors were being distracted from other more important medical care by mifepristone-related emergencies.
In that hearing, the FDA argued that withdrawing the approval of mifepristone would mean, among other things, clinics would have to shut down and patients would not be able to get the care they want. When the plaintiffs’ lawyer argued in rebuttal, Judge Matthew J. Kacsmaryk asked about this “parade of horribles.” The way the lawyer for the plaintiffs responded should be the end of this case.
The lawyer referenced one of the declarations supporting the FDA’s side of the case that stated that Maine Family Planning would have to close 18 of their 19 sites if mifepristone was removed from the market. The plaintiffs’ lawyer took issue with that, arguing that Maine Family Planning wouldn’t have to do that because they had issued “public press statements … that they would just go to a one-drug [medication] abortion treatment.” This “one-drug” treatment entails using misoprostol (the drug now given after mifepristone) by itself, rather than following mifepristone. Because of this case challenging mifepristone, abortion providers have focused on the ability to quickly change over to this one-drug protocol with minimal possible sacrifices to efficacy or safety.
In discussing this new protocol, the plaintiffs’ lawyer let the judge know that the “parade of horribles” he was asking about—including clinics closing, patients not getting care—wouldn’t happen because clinics will continue to offer medication abortion, just without mifepristone. And in response to further questioning from the judge, the plaintiffs’ lawyer said that they were not asking the judge to ban misoprostol-only abortions.
If law and logic matter, this response should be 100 percent fatal to the plaintiffs’ case. Why? Because one of the textbook requirements of bringing a case—any case—in federal court is that the plaintiffs have to show that a ruling in their favor will likely remedy their claimed injury. Otherwise, if courts were asked to do something that didn’t remedy the alleged harm, people would come to courts all the time to ask for things that don’t impact them. From almost day one of our Constitution, the Supreme Court has insisted on this requirement. It reasoned that federal courts are not in the business of giving mere advice and can be called into action only in cases that will actually change circumstances on the ground by fixing the injury the plaintiff has suffered.
But here, the plaintiffs have clearly admitted that a ruling in their favor won’t redress their harms. They’ve told the court, on the one hand, that patients, doctors, and their associations are harmed by medication abortion but, on the other hand, not to worry about clinic closings, patients losing care, and other negative effects of them winning their case because clinics have a slightly different medication abortion protocol they will use instead.
What plaintiffs didn’t say is that this one-drug protocol will produce the same alleged harms as the two-drug protocol, possibly even more. Misoprostol-only abortions are very safe and very effective and are the standard of care in many places around the world. However, the best evidence we have right now is that they are slightly less effective and result in more cramping and bleeding than abortions with mifepristone first. With a lower efficacy rate and more bleeding and cramping, there will, theoretically at least, be more people needing follow-up care with the one-drug regimen. And even if there isn’t more of a need, there is no world in which the need would be lessened.
Either way, what happened here is that plaintiffs admitted in the hearing last week that medication abortion isn’t going away, regardless of what this judge does, which means nothing will change if they win. Countless Supreme Court cases have reiterated the basic prohibition on federal courts hearing cases that won’t bring about change in the real world. To flag just one, the situation here is almost identical to the problem identified by the Supreme Court in a 1992 opinion written by Justice Antonin Scalia. There he said that plaintiffs challenging U.S. funding of overseas projects that allegedly harmed endangered species did not meet the requirement of redressability because they “produced nothing to indicate that the projects they have named will either be suspended, or do less harm to the listed species, if that [funding] is eliminated.”
It’s worse here. Not only did plaintiffs produce nothing to show that medication abortion would be suspended or do less harm if they prevail, but they admitted that it would continue, just slightly modified. This should be the end of the lawsuit—without redressability, no one can come before a federal court and ask for relief.
Now, many of us fear the worst here—that this case will not be decided on law but rather on the politics of abortion. To the extent law and logic continue to matter in an abortion case in 2023, the plaintiffs’ admissions that their injuries will not be remedied are yet another reason to throw this case out of court.