In this post, I will walk through the decision & explain just how bad

April 15, 2023 5:00 PM

District judge Kacsmaryk's legally indefensible ruling on mifepristone. (Single link Substack). "Essentially the district court’s reasoning is this: the FDA seems slow and bad, so as a kind of revenge against the FDA, let’s allow plaintiffs to bring suits that are plainly time-barred! This isn’t really “law” in any conventional sense of the word."

From the main article:

“Third-party standing” is something that plaintiffs sometimes have to show in addition to—not instead of—Article III standing. Plaintiffs always, 100% of the time, have to show what the Supreme Court has called the “irreducible constitutional minimum” of standing under Article III—(1) a concrete and particularized injury, that is (2) caused by the defendant’s action, and (3) redressable by the requested relief.

...…The district judge doesn’t understand this. He says: “The injuries suffered by patients of the Plaintiff medical associations’ members are sufficient to confer associational standing” (p. 10). In other words, he thinks that if hypothetical patients have Article III standing, this means that the doctor-members of the plaintiff organizations can also assert “third-party standing” without a showing that the doctor-members themselves were injured. Standing does not work this way, this is completely wrong.

Mark Joseph Stern @mjs_DC: Given that the author is a former Scalia clerk, I'm pretty sure he knows what he's talking about when he explains why Kacsmaryk's standing analysis *directly contradicts binding Supreme Court precedent* authored by Scalia.

More from the article:

So yes, Judge Kacsmaryk really is quoting the statistic that “eighty-three percent of women report that chemical abortion ‘changed’ them,” without mentioning that the entire sample consists of anonymous bloggers on a website called “Abortion Changes You”!!!! This is roughly like reporting a statistic that “83% of people are fans of Judge Kacsmaryk” without mentioning that the entire sample consisted of posters on JudgeKacsmarykFanClub.com.

Also on Kacsmaryk's use of extremist "abortionist" terminology.

posted by spamandkimchi (16 comments total)

Oh! Adam Unikowsky just posted Mifepristone and the rule of law, part III. "The Fifth Circuit’s decision is less wrong than Judge Kacsmaryk’s decision. However, it is still very, very wrong."
posted by spamandkimchi at 5:03 PM on April 15, 2023 [2 favorites]

See also Kacsmaryk’s extensive use of anti-choice language, e.g. ’unborn human.’
posted by box at 5:36 PM on April 15, 2023 [8 favorites]

This is great, spamandkimchi - I have such a bare understanding of so much of the law, and I am so appreciative of analysis from people who DO understand the law.

Although his part 1, Mifepristone and the rule of law was posted on March 3, before the ruling, it's worth a read as well.

I really appreciate getting to learn more about the law in general and this case in particular from Unikowsky. Thank you so much for posting this, spamandkimchi!
posted by kristi at 5:42 PM on April 15, 2023 [1 favorite]

it's cute we're still pretending precedent and law have any meaning. this will get appealed to the supreme court, which will then inform us which of our inalienable rights are slightly more alienable than previously thought
posted by logicpunk at 5:58 PM on April 15, 2023 [43 favorites]

Lying to the Senate, even by omission, is usually a felony. I know that it is unrealistic to get impeachment from a non-supermajority Senate, but a courtroom deciding the safety and efficacy of drugs is ridiculous, and this extremism is a cancer that needs to be met head on.
posted by They sucked his brains out! at 6:15 PM on April 15, 2023 [32 favorites]

The real activist judges were Republicans all along. Republicans accuse democrats of the things they do: see also voter fraud, out of control government spending, etc.
posted by interogative mood at 9:32 PM on April 15, 2023 [25 favorites]

To be perfectly fair, many of the white supremacist Supreme Court justices who ruled that disenfranchisement and Jim Crow were cool under the 14th and 15th Amendments were Democrats at the time.
posted by away for regrooving at 11:12 PM on April 15, 2023

Interrogative mood: being run by pedophiles. It's like they can't imagine that someone wouldn't do what they did, so of course the Democrats did it.

Back on this, why haven't the wannabe fascists recruited women who have been " harmed" by Mifepristone to do this lawsuit?
posted by Hactar at 12:08 AM on April 16, 2023 [7 favorites]

Back on this, why haven't the wannabe fascists recruited women who have been " harmed" by Mifepristone to do this lawsuit?

That would require women to have agency and independence, the very things that this lawsuit is trying to work against.
posted by Dysk at 1:08 AM on April 16, 2023 [13 favorites]

This case is a good opportunity for people who believe in the right to an abortion, but not the right to use recreational drugs (or vice versa), to take a good hard look at themselves and consider why they have an inconsistent view of human rights.

It's bodily autonomy all the way down.
posted by The genius who rejected Anno's budget proposal. at 3:55 AM on April 16, 2023 [6 favorites]

There’s a mifepristone-related “petition” on Resistbot right now: Text Sign PWVNKI to 50409. (Somewhat better to call, but I like these for their ease of use, and you can also use them as a script.)

They call them petitions but they are sent individually to one’s congressfolk.
posted by joannemerriam at 5:56 AM on April 16, 2023

The author is a former Scalia clerk. I think I see where he's coming from. I had to roll my eyes after the first paragraph, because first you get the assertion "a judge's personal beliefs and professional background are irrelevant to his [sic] ability to be a good judge." That's easily disprovable by reductio ad absurdum. Of course, personal beliefs and professional background are relevant! Would be OK with a judge who was a Nazi even though the judge's Nazism may have been nothing more than personal belief? Then he quotes Trump judge Kyle Duncan saying "one must meet reason with reason," even though Judge Duncan's purpose in giving his speech at Stanford Law School was to pull off an elaborate troll that triggered the libs. Judge Duncan had the opportunity to finish speech after his hecklers quieted down, but he stormed off instead, because it's just kayfabe so that he can audition for a promotion in the next Republican administration. He also insulted students who did not heckle him ("you are an appalling idiot" was one choice insult), but who addressed him in the Q&A with questions he didn't like. The Scalia clerk does an admirable piece-by-piece decimation of Kacsmaryk's slipshod legal reasoning, but I get the sense that author isn't bothered by Kacsmaryk's bad legal reasoning per se than with how blatantly slapdash Kacsmaryk is in his methods. Kacsmaryk is so overly obvious that he's putting the more subtle sophistry of Scalia's more cerebral legions of ex-clerks in jeopardy.
posted by jonp72 at 7:33 AM on April 16, 2023 [8 favorites]

It's almost as if being a superstitious racist should be disqualifying for sitting on the federal bench or holding any sort of public office….
posted by ob1quixote at 10:59 AM on April 16, 2023 [8 favorites]

Mifepristone and the rule of law, part IV: "The Fifth Circuit's merits analysis was as wrong as its standing analysis."
posted by BungaDunga at 11:22 AM on April 16, 2023

From part IV, linked by BungaDunga:

Consider, finally, the implications of the Fifth Circuit’s decision. The Fifth Circuit is requiring that the gestational age limit go back from 70 days to 49 days, before many women know they are pregnant. As noted above, I don’t think anyone, even the plaintiffs, has ever doubted the FDA’s conclusion that mifepristone works just as well at 70 days as at 49 days. But, too bad. So now, even in states where abortion is legal, women who decide to get an abortion from 49 days to 70 days are now forced to use a less effective drug regimen or get a surgical abortion. One gets the sense that perhaps “protecting women’s safety” was not actually motivating the Fifth Circuit here.

posted by spamandkimchi at 1:07 PM on April 16, 2023 [3 favorites]

Yet one more argument for a fifteen seat Supreme Court after the coming or-so-I-hope Democratic Congressional and Senatorial landslides of 2024.
posted by y2karl at 11:44 PM on May 7, 2023