Monday, April 10, 2023

Judge Kacsmaryk's Tortured Readings

by Michael C. Dorf

Reading Judge Kacsmaryk's Good Friday ruling in Alliance for Hippocratic Medicine v. FDA, I had a sense of deja vu. At first I struggled to identify when I had previously felt this way. Then I remembered: it was when I read the memoranda produced by George W. Bush administration lawyers such as John Yoo and Jay Bybee rationalizing and justifying torture. Like those memos, Judge Kacsmaryk's opinion gives the unmistakable impression of aiming at a pre-determined result, with counter-arguments and contrary evidence treated as obstacles to be overcome rather than grounds for hesitation. Just as those of the Bush administration torture memos that were prepared by the Office of Legal Counsel (OLC) betrayed OLC's longstanding tradition of providing the President with objective analysis notwithstanding his policy druthers, so Judge Kacsmaryk's anti-abortion screed clothed in the garb of a judicial opinion betrays his oath to do equal justice.

Even so, in one way Judge Kacsmaryk's opinion is the exact opposite of the torture memos. Whereas Yoo, Bybee, and the other authors of the Bush torture memos in some places sought to sanitize waterboarding, stress positions, and walling with euphemisms such as "enhanced interrogation," Judge Kacsmaryk appears to go out of his way to use inflammatory language. In eleven places in his opinion, he labels doctors who prescribe abortion-inducing medication even in the earliest weeks of pregnancy as "abortionists." He uses some variant of "unborn" (modifying either "human" or "child") in fourteen places, including in a footnote that ostensibly justifies the choice by decrying use of the term "fetus" as "unscientific" because it refers only to one specific stage of development. And in five places he refers to persons seeking to end their pregnancies at the early stages at which mifepristone is effective as "mothers."

It is difficult to know whether, in fully adopting the lexicon of the pro-life movement in an opinion that ostensibly concerns whether the FDA satisfied its statutory obligations with respect to drug and safety, Judge Kacsmaryk was deliberately trolling the large majority of Americans who want medical abortion to remain legal, or whether, alternatively, he is so ensconced in his theocratic anti-abortion (as well as anti-LGBTQ) bubble as not to realize how intemperate his opinion is. It is unclear which is worse.

There are so many flaws in Judge Kacsmaryk's opinion that it would take a document roughly comparable in length to the opinion itself (67 pages) to consider them all. I'll limit myself to two issues: standing and the interpretation of the Comstock Act.

Standing

At pages 7-11 of the opinion, Judge Kacsmaryk approves standing for the organization challenging FDA's approval of mifepristone on the ground that its member health care professionals are well positioned to represent the interests of their patients. But who are these patients? The organization's members are doctors and other health care professionals who oppose abortion and therefore do not provide abortions. They are under no legal obligation to participate in surgical abortions or to prescribe mifepristone for medical abortions. Whether or not mifepristone was properly approved, the plaintiff organization's members would not prescribe it for any of their patients. And they would be able to point to state and federal laws that expressly grant religious and moral exemptions from any requirements to provide any form of abortion. Thus, it appears that the anti-abortion members of the plaintiff organization have no patients whose safety would be endangered if mifepristone were unsafe.

That fact makes it all the more astounding that Judge Kacsmaryk could conclude that the plaintiff organization members are better positioned to represent the interests of their patients than are doctors who provide abortion care to represent the interests of their actual patients. And yet he writes: "Unlike abortionists suing on behalf of women seeking abortions, here there are no potential conflicts of interest between the Plaintiff physicians and their patients." I suppose the second half of that sentence could be technically correct, but only in a way that totally undercuts the opinion's conclusion with respect to standing: there's no conflict of interest because the plaintiff physicians have no patients who could possibly be harmed by mifepristone.

The closest that Judge Kacsmaryk comes to explaining how doctors who don't prescribe mifepristone could be harmed by its FDA approval is through a flight of fancy. He notes that the plaintiffs allege that complications from mifepristone will result in emergencies that "consume crucial limited resources, including blood for transfusions, physician time and attention, space in hospital and medical centers, and other equipment and medicines."

Well, sure, the plaintiffs allege that such "adverse events can overwhelm the medical system," but Judge Kacsmaryk was not resolving a defense motion to dismiss the complaint, with respect to which he would need to accept the plaintiffs' allegations as true; he was deciding a preliminary injunction motion by the plaintiffs, who had the burden of establishing a likelihood of success on the merits. And the allegation that there is a risk that the approval of mifepristone will lead to a flood of patients suffering from complications is, not to put too fine a point on it, complete and utter bullshit. We know as much from over a hundred studies of over a hundred thousand patients covering a span of over thirty years.

The fact is also easily observable to the naked eye. Mifepristone was approved over twenty years ago. Have hospitals been overwhelmed as a result? Of course not. The only time in that period that hospitals were overwhelmed was during the most acute phases of the COVID pandemic, exacerbated by the refusal of large segments of the population to get vaccinated. Guess who filed four lawsuits against the federal OSHA vaccine mandate? The Alliance Defending Freedom (ADF). You know who another client of ADF is? That's right: the plaintiffs challenging FDA approval of mifepristone. Huh. It almost makes you think that they're not sincerely concerned about hospitals being overwhelmed.

Comstock Act

On the merits, much of Judge Kacsmaryk's reasoning rests on the supposition that FDA could not approve mifepristone for mail-order prescription because sending mifepristone via the mail or other courier violates a provision first enacted as part of the (notorious) Comstock Act of 1873. Mostly targeted at obscenity, it also forbids the mailing of "[e]very article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion . . . ." Accordingly, Judge Kacsmaryk concludes, FDA's 2021 approval of mail-order delivery of mifepristone was unlawful. Although he offers a different ground for invalidating the original FDA approval in toto, invocation of the Comstock Act could also be the basis for invalidating the entire approval, given that doctors received mifepristone via the mail (or courier service).

Judge Kacsmaryk's reading of the Comstock Act's text, standing alone, is reasonable. However, the text does not stand alone. As a December 2022 OLC memo lays out in detail, the relevant provision of the Comstack Act has long been read to forbid the mailing of materials only for illegal abortions. The memo cites numerous decisions of the lower federal courts to that effect. Notably, the key decisions pre-date Roe v. Wade by decades, so the interpretation was not in any sense adopted for the purpose of constitutional avoidance. Hence, they survive Dobbs.

It's true that none of the decisions limiting the reach of the Comstock Act is from the Fifth Circuit, but that appears to be only because the narrowed reading of the Comstock Law was so widely accepted that by the middle of the twentieth century cases involving the mailing of otherwise legal materials simply didn't arise under it. Already by 1961, the construction of the Act to exclude otherwise-lawful medical use was so well established that Justice Harlan, dissenting on jurisdictional grounds in Poe v. Ullman but otherwise writing what would come to be seen as the core justification for modern unenumerated rights jurisprudence, regarded a literalist reading of the Comstock Act as already antiquated. He wrote:

The so-called Comstock Law . . . may be regarded as characteristic of the attitude of a large segment of public opinion on [contraception] through the end of the [nineteenth] century. It was only by judicial interpretation at a later date that the absolute prohibitions of the law were qualified to exclude professional medical use [citing leading lower court cases]. However, the Comstock Law, in its original form, "started a fashion," and many States enacted similar legislation, some of which is still on the books. [Citations omitted]. Indeed the criticism of these measures assume that they represented general public opinion, though of a bygone day. [Citations omitted].

Over sixty years ago, the interpretation of the Comstock Act endorsed by Judge Kacsmaryk was already recognized as part of a bygone era.

Meanwhile, as the OLC memo also explains, Congress was clearly aware of the judicial decisions reading the Comstock Act as inapplicable to otherwise legal medical use. Various enactments and re-enactments over the course of decades can readily be said to have ratified that understanding.

Nonetheless, Judge Kacsmaryk believes he knows better than just about the entire legal community. After all, he says, the limitation does not appear in the text of the Comstock Act, so that's that.

In addition to contradicting over a century of jurisprudence, Judge Kacsmaryk's understanding of the Comstock Act is problematic on its own terms. Mifepristone is not only an abortion pill. It's a progesterone blocker and thus also used after naturally occurring miscarriages as well to treat Cushing's syndrome. Even read literally, the Comstock Act does not forbid sending mifepristone through the mail or by common carrier for those other purposes. Thus, at most, Judge Kacsmaryk's own view should lead him to conclude that a Comstock Act prosecution for mailing mifepristone could succeed if the government proved that the defendant mailed it with the intent that it be used for abortion. If mailed for some other purpose (such as to treat miscarriages or Cushing's), the mailing would be lawful. Hence, FDA approval is not inconsistent with even Judge Kacsmaryk's mistaken interpretation of the Comstock Act. And he has no jurisdiction to opine on the scope of the Comstock Act in some hypothetical criminal prosecution.

In one way, however, Judge Kacsmaryk's reliance on the Comstock Act is ironically fitting. That law purports to restrict obscenity. If nothing else, his opinion is obscene.