Raw Story has a couple of promising pieces out regarding the Supreme Court hearing today about Texas-based Judge Matthew Kacsmaryk’s attempt to impose a nationwide ban on the “morning after” abortion pill Mifepristone. From the first, we hear about Neil Gorsuch’s extreme skepticism about both the “merits” of the case and the increasing tendency of single judges like Kacsmaryk to try and impose their own narrow views on the rest of us with unjustified nationwide injunctions:
The court heard oral arguments Tuesday on the Food and Drug Administration’s rules for dispensing the mifepristone, which were challenged by the anti-abortion Alliance for Hippocratic Medicine, and Gorsuch appeared skeptical that Texas-based federal judge Matthew Kacsmaryk had the authority to issue a nationwide ban.
"There are zero universal injunctions issued during Franklin Delano Roosevelt's 12 years in office, pretty consequential ones, and over the last four years or so the number is something like 60, and maybe more than that," Gorsuch told Erin Hawley, an attorney for the Alliance for Hippocratic Medicine. "They're a relatively new thing, and you're asking us to extend and pursue this relatively new remedial course which this court never adopted itself. Lower courts have kind of run with this."
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"Neil Gorsuch expresses undisguised contempt for Judge Matthew Kacsmaryk's nationwide ban on mifepristone, condemning it as part of a 'rash' of unlawfully overbroad remedies awarded by unrestrained district courts," said Slate legal analyst Mark Joseph Stern. "Obviously a bad sign for the anti-abortion advocates here."
"Apparently, we've triggered 'anti-universal injunction'-Gorsuch," said Elie Mystal, justice correspondent for The Nation. "Never know which power this dude is going to be fixated on destroying but TODAY THE BROKEN CLOCK STOPPED ON THE RIGHT NUMBER."
Meanwhile, in the second Raw Story piece Ketanji Brown Jackson did a brilliant takedown of fellow Justice Samuel Alito’s snide questioning of pharma lawyer Jessica Ellsworth as to whether she thought the FDA was “infallible” in its judgements regarding drug safety:
"So you were asked if the agency is infallible, and I guess I'm wondering about the flip side, which is do you think that courts have specialized scientific knowledge with respect to pharmaceuticals, and as a company that has pharmaceuticals, do you have concerns about judges parsing medical and scientific studies?" Jackson said.
"I think we have significant concerns about that, and there are two amicus briefs from the pharmaceutical industry that expand on why exactly that's so concerning for pharmaceutical companies who do depend on FDA's gold standard review process to approve their drugs and then to be able to sell their products in line with that considered judgment," Ellsworth replied.
All-in-all, a surprisingly good day at the Supreme Court, where the justices seemed inclined to dismiss the case against Mifepristone out of hand for lack of standing on the part of the plaintiffs (a fringe group of “Christian” doctors, the Alliance for Hippocratic Medicine) to demonstrate how they were harmed in any real way by the continued availability of the drug. We probably won’t get their decision in the case until June though.