Statutory Stare Decisis: Mifepristone Meets Sunday Mail Delivery

by Michael C. Dorf

The Supreme Court's stay order in Danco Labs v. Alliance for Hippocratic Medicine both restores the status quo ante (under which mifepristone can be distributed in the mail) and provides an opportunity for an orderly consideration of the plaintiffs' claims.  However, because the case has been sent back to the Fifth Circuit--which already upheld (in a stay posture) the part of Judge Kacsmaryk's preliminary ruling that invalidated the FDA's 2016 expanded access to mifepristone, there is a fair chance that the plaintiffs will prevail again in the lower courts, thus ensuring that the case returns to the Supreme Court. The expedited appeal could mean a ruling in a few weeks or at most months, with a cert petition soon to follow, and thus a SCOTUS oral argument next Term.

If and when the case returns to the Supreme Court, there are multiple grounds on which the plaintiffs should lose. My personal favorite is standing. The main route to standing offered by the doctors and other health-care professionals who are members of the plaintiff organization goes like this: mifepristone and expanded access to it without the requirement of visiting a doctor for its dispensation lead to some number of complications and side effects; some of those will result in hospital visits; some of the patients who take mifepristone will show up in hospitals and doctors' offices where the plaintiff members work; at that point, one can say that these doctors' patients will have been harmed by mifepristone (and expanded access to it), so the health care professionals have standing because the approval implicates their (future) patients.

By this logic, any doctor anywhere has standing to challenge not only FDA approval of any drug alleged to be unsafe. Doctors, nurses, and other health care professionals by this route gain standing to challenge any unsafe activity that they allege has been improperly regulated. For example, pursuant to the Flammable Fabrics Act (FFA), the Consumer Products Safety Commission (CPSC) issues regulations. Under the standing theory advanced by the plaintiffs suing the FDA to dis-approve mifepristone, any doctor in the country should be able to sue the CPSC challenging any FFA-based regulation on the ground that it insufficiently protects against fire risk, leading to the possibility that someone could be burned and end up in a hospital where the plaintiff doctor needs to treat them. Standing would be unlimited under this approach.

And that's to say nothing of the utter disingenuousness of a group of people who oppose abortion on religious and embryo/fetus-protective grounds pretending to be concerned about the health and safety of a means of abortion. To be sure, there is some analogy here to lawyers who oppose the death penalty regardless of how it is performed suing to block particular execution methods as unconstitutionally cruel and unusual. But at least those lawyers want what's best for their actual clients--namely, to spare them from execution. It would be more honest if the Alliance for Hippocratic Medicine sued on behalf of zygotes, embryos, and fetuses rather than the pregnant people whose abortions they want to prevent.

I hope that if/when the case returns to SCOTUS, the Court will dismiss on standing grounds. In the meantime, because the Fifth Circuit has already shown itself willing to indulge the far-fetched standing theory of the plaintiffs, I want to say a word about the merits--in particular about statutory stare decisis.

As Justice Kagan observed in last week's oral argument in Groff v. DeJoy (at pp. 15-16 of the transcript), the Court has often said that stare decisis is particularly powerful in cases involving interpretations of statutes. At issue in Groff is whether to overrule TWA v. Hardison, which construed Title VII to impose only a modest burden on an employer asked to accommodate an employee's religious observance. Whether or not Hardison was rightly decided as an initial matter, the principle that statutory cases call for strict adherence to stare decisis rests on two related propositions: (1) one who thinks the Court erred in interpreting a statute can ask Congress to amend it and thus does not need the Court to overturn the precedent; and therefore (2) congressional failure to amend a statute that the Court allegedly misconstrued suggests congressional acquiescence and thus that the court's interpretation was correct.

Importantly, as Justice Kagan stated during the oral argument, point (2) does not require actual subjective evidence of congressional acquiescence. The point is that in statutory cases congressional acquiescence is simply presumed.

Now let's turn to mifepristone. In Judge Kacsmaryk's opinion invalidating FDA approval of mifepristone, he relied in part on the proposition that the Comstock Act forbids distribution by mail or similar means of materials intended for use for abortions. In so doing, he rejected what had been a very longstanding view of the lower courts that the Comstock Act does not forbid shipping abortion-related materials for legal abortions (or legal contraception, to which the Act also formerly applied). As I discussed in an earlier essay, Judge Kacsmaryk's reading of the Comstock Act would be fair if one were to examine only the naked text, but is hard to defend in light of the century of prior case law.

To be sure, that earlier case law did not come from the Fifth Circuit or the Supreme Court. Hence, statutory stare decisis was not literally involved: Judge Kacsmaryk's decision does not overrule any prior precedent binding on him. Should that make a difference?

Well, for one thing, the precedents that Judge Kacsmaryk deems mistaken were recognized by, even if not expressly holdings of, the Supreme Court. As I noted in that earlier essay, a leading opinion--Justice Harlan's dissent (only on jurisdictional grounds) in Poe v. Ullman expressly acknowledged the lower court cases narrowly construing the Comstock Act, saying nothing to doubt that interpretation.

For another thing, at least where a line of lower court statutory decisions is longstanding and consistent across circuits that have addressed the issue, the reasons for strong stare decisis apply. Disappointed litigants can appeal to Congress for a change in the law. And congressional failure to act in the face of high-profile statutory decisions can be deemed acquiescence in the rules laid down in those decisions. Accordingly, I read Judge Kacsmaryk's opinion as in strong tension with the spirit if not exactly the letter of statutory stare decisis.

Note that for purposes of this essay I've accepted the grounds for an especially strong doctrine of stare decisis in statutory cases. However, I am not fully persuaded that it's right. Given all of the veto gates on legislation, regardless of how the Court decides a statutory decision it will be difficult for those who are disappointed with the decision to overcome legislative inertia. Congressional failure to "correct" a Supreme Court ruling (or a string of rulings by the lower courts that gain prominence) does not necessarily signal congressional acquiescence. Accordingly, writing on a blank slate I might say that stare decisis in statutory cases ought to be as strong as in constitutional cases but not much stronger.

That's all as a general matter. The truth is that in the mifepristone case, even a more modest doctrine of statutorystare decisis would suffice to protect the longstanding lower court interpretation of the Comstock Act to reach only the sending of products intended for illegal abortions--even where, as here, the key decisions are from other circuits. And of course there are other grounds on which the plaintiffs challenging mifepristone's approval should lose.