The U.S. Court of Appeals for the 5thCircuit sits in New Orleans, a city built on a tangled crossroads of history and culture. That location sets an appropriate stage for appeal of the “medication abortion” case, Alliance for Hippocratic Medicine v. U.S. Food & Drug Administration.That case forces the 5thCircuit’s judges to confront what it means to be a “judicial” conservative, in contrast to a “political” one.
On April 7, U.S. District Judge Matthew Kacsmaryk held that the Food and Drug Administration erred in how it approved mifepristone, one of the two drugs widely used for a medication abortion, in 2000. He issued a stay, paused for seven days to allow an appeal, that would compel the FDA to suspend its longstanding approval of the drug. Because a majority of abortions in the United States are induced using mifepristone, his ruling has enormous practical impact, rivaling even the overruling of Roe v. Wadelast year. His ruling is now on appeal to the 5thCircuit, the court of appeals with jurisdiction over federal trial courts in Texas.
That appeal forces a choice between two concepts of what it means to be “conservative.” To put it broadly, a “political” conservative one who favors certain policy results, and a “judicial” conservative one who favors a particular process for making judicial decisions.
In this setting, political conservatism dislikes abortion and favors policies that limit access to it. Political conservatives see such policies as consistent with a commitment to traditional values and the sanctity of life. They also prefer to see such matters handled at the state rather than the federal level.
AdvertisementIn contrast, judicial conservatism is process-based, and skeptical of “activism” by judges that exceeds the limited role of interpreting laws made by other branches of government. Judicial conservatives see such activity as undermining the constitutional separation of powers, and risking congressional backlash that limits federal-court jurisdiction or significantly restructures the judiciary.
Advertisement Advertisement AdvertisementNeither Dobbs v. Jackson Women’s Health nor the litigation about the constitutionality of S.B. 8 (Texas’ “bounty-hunter” law targeting abortion providers) presented tension between these ideas. In both of those situations, a politically conservative outcome (reduced abortion access) both reinforced, and was reinforced by, a judicially conservative approach (federal-court deference to laws duly enacted by state legislatures).
The abortion-medication case presents a different situation. As a policy matter, Kacsmaryk’s ruling plainly reduces the availability of abortion. But unlike the Dobbsand S.B. 8 litigation, this case requires a procedural decision about the plaintiffs’ standing to bring the case in the first place. That decision brings political and judicial conservatism into direct conflict. No matter how strongly any judge may favor the politically conservative outcome of this ruling, that ruling can only be affirmed with an activist approach to standing.
AdvertisementThat is so because the plaintiffs in this case are a motley crew: Doctors who claim they may someday see a patient who took mifepristone and had a bad reaction, which is (they say) somehow traceable to the combination of a 23-year-old FDA decision and the use of the U.S. Postal Service to mail mifepristone to doctors and patients. The law of standing ordinarily bars claims by plaintiffs with only “speculative” injury, and this case involves speculation added to more speculation.
AdvertisementMake no mistake about it: If the 5thCircuit accepts that these plaintiffs have standing to challenge the FDA’s approval of mifepristone, it will not be engaging in judicial conservatism. It will be assertively expanding the role of the federal courts in overseeing the nation’s health care system—not to mention its postal system. A “private attorney general” is a well-known concept, but this case presents something different: the idea of a “private postal inspector” to enforce the archaic morality code in the Comstock Act.
Advertisement AdvertisementTo be sure, many judges feel strongly about the matters at issue in this case. (For example, Ronald Reagan appointee and 5thCircuit judge Edith Jones memorably included a graphic photo of fetal tissue in a 2019 abortion opinion.) They may believe that the federal courts should address the plaintiffs’ concerns, even if their theory of standing is dodgy.
But the Supreme Court sounded a cautionary note about that way of thinking in the 2021 case of California v. Texas, where a Texas district judge and a 5thCircuit panel majority found that the plaintiffs had standing to challenge the constitutionality of the Affordable Care Act—a law much maligned by political conservatives. The Supreme Court saw otherwise in California v. Texas, a 7–2 decision holding that the plaintiffs had no standing because their alleged injury had no connection to any law that the government could actually enforce.
Advertisement Advertisement AdvertisementCalifornia v. Texasis no outlier. As recently pointed out in Slate, the plaintiffs’ counsel in the abortion-medication case had difficulty answering questions about “redressability”—a similar standing doctrine that asks whether the requested relief will actually resolve the plaintiffs’ claimed injury.
And while Kacsmaryk was considering the abortion-medication case, a 5thCircuit panel cited California v. Texasin rejecting a challenge by several states to the “Interim Estimates” of a government study about greenhouse emissions, holding that “an agency’s reliance on the Interim Estimates when crafting a future regulation is mere conjecture.”
Notably, the Supreme Court decided California v. Texaswith the same ideological makeup that it has today; while outgoing Justice Stephen Breyer wrote the majority opinion, Justice Amy Coney Barrett was already on the court. She joined his opinion, along with fellow conservatives Brett Kavanaugh and John Roberts, and with Clarence Thomas concurring. TheDobbs-era Supreme Court is well aware of the judicial strand of conservative thought, as well as the political.
Advertisement AdvertisementProcedurally, the 5thCircuit’s handling of this appeal will inevitably involve what appellate litigators call “panel roulette.” The case will first go to a three-judge panel to consider the government’s application to stay the trial court’s ruling, and then to a different three-judge panel to consider the merits of the appeal. The first ruling will likely be a decision this week by the initial panel on whether to grant an “administrative stay” while briefing on a longer interim stay plays out; the merits panel will likely not get the case for several more weeks. Both panels will have been randomly determined months ago, and it is truly “luck of the draw” as to what judges will participate—and thus, what judicial philosophies may be brought to bear on the case in the first instance.
AdvertisementBut the full en banccourt will have its eyes on this case from inception. Even if the case is not formally taken for en bancreconsideration after the merits panel rules, vigorous behind-the-scenes discussion among the full court is a certainty. In that discussion, the voices of the court’s centrists (Leslie Southwick of Mississippi, and Catharina Haynes and Patricia Richman of Texas) and their views on the interplay of political and judicial conservatism will have particularly strong impact.
The 5thCircuit is well known as a “conservative court.” That court’s resolution of the abortion-medication case will signal what adjective—“political” or “judicial”—should precede that phrase. Unlike the controversial and high-profile merits of this case, the law about standing involves abstract and technical principles. But those principles are fundamental to the balance of powers, and a decision to give them short shrift so that these plaintiffs can sue will have consequences far beyond this one dispute.
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