Supreme Court Rejects World's Dumbest Legal Theory, Accidentally Protecting Birth Control
Now right-wing extremists have to go with plan B...
(Photo by Sarah Silbiger/Getty Images)
The Supreme Court’s conservative majority will do anything to curtail women’s rights… but it won’t do that. And by “that” we mean stretch the concept of standing out of existence.
In August 2022, five out-of-state activist groups incorporated an entity in Amarillo, Texas, for the sole purpose of having a 1-in-1 shot of bringing their bid to ban mifepristone in front of Trumpland darling Judge Matthew Kacsmaryk. The excuses for this artificial forum-shopping embarrassed the federal court system so badly that the Judicial Conference issued a new rule to prevent it and the Fifth Circuit responded by telling the Chief Justice to get bent. Very, very normal stuff.
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But while the venue arguments were bad, the standing theory was somehow even worse. How are a bunch of rando physicians injured by the FDA approving mifepristone? Not really clear, but the plaintiffs’ lawyers at Alliance Defending Freedom had just successfully taken a hammer to anti-discrimination laws with a fictional website controversy, so they were undaunted and the Fifth Circuit went right ahead and rubber-stamped it with crackerjack analysis from James Ho:
Unborn babies are a source of profound joy for those who view them. Expectant parents eagerly share ultrasound photos with loved ones. Friends and family cheer at the sight of an unborn child. Doctors delight in working with their unborn patients—and experience an aesthetic injury when they are aborted.
People like babies and therefore anyone can sue. It’s a bold theory and an incredibly stupid one. Today, the Supreme Court kicked it properly to the curb.
As Justice Gropey McKeggerton notes, the theory advanced here invited the Court to adopt “a novel standing doctrine out of whole cloth.” They, unanimously, declined:
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Consider some examples. EPA rolls back emissions standards for power plants—does a doctor have standing to sue because she may need to spend more time treating asthma patients? A local school district starts a middle school football league—does a pediatrician have standing to challenge its constitutionality because she might need to spend more time treating concussions? A federal agency increases a speed limit from 65 to 80 miles per hour—does an emergency room doctor have standing to sue because he may have to treat more car accident victims? The government repeals certain restrictions on guns—does a surgeon have standing to sue because he might have to operate on more gunshot victims?
Shorter:
The Fifth Circuit getting paddled by even this conservative majority over standing? This seems somewhat familiar:
Insanity is doing the same thing over and over again and expecting different results. And nothing defines insanity quite like the Fifth Circuit.
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Except the YSL trial.
But the Fifth Circuit will keep trying to rewrite standing until they crack this nugget. Kacsmaryk has invited three states into the case and maybe they will have more luck with the conservative majority than the “everyone loves puppies!” theory of standing.
In fact, Gillian Branstetter of the ACLU suggests that’s exactly the plan outlined in this opinion:
So here we go again.
Earlier: MAGA Judge James Ho Unveils New Injury Based On Conservative Tears
Judge James Ho Delivers Tour De Force In Disingenuous Bullsh*t
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
