The U.S. Supreme Court vs. Lower-Court National Injunctions

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Joined: Fri Jun 29, 2007 8:43 pm

The U.S. Supreme Court vs. Lower-Court National Injunctions

Post by johnkarls »

Originally Posted by johnkarls » Sun Sep 26, 2021 10:12 am – 568 views in Sec. 3 (Possible Topics for Future Meetings) before being transplanted here.

I propose that we focus on how in recent years, activist lower-court judges have issued nation-wide injunctions on matters of national importance.

This practice is especially egregious when combined with the notorious practice of “judge shopping” (filing a lawsuit in front of a notoriously-sympathetic judge).

This means, as a practical matter, anyone can file a lawsuit in front of a sympathetic judge and obtain a national injunction that, FOR YEARS UNTIL THE MATTER REACHES THE U.S. SUPREME COURT, suspends federal law enacted by Congress, Executive Orders promulgated by the President, regulations issued by federal agencies, etc., etc.

Indeed, the National Law Journal reported on 7/14/2020 that during 2017-2018 there were 25 nationwide injunctions and that “a few [Supreme Court] justices are on the warpath against nationwide injunctions” -- though obviously not yet a majority for banning them outright.

Instead, the Supreme Court has begun issuing peremptory rulings in many such cases – invalidating the nationwide injunction while permitting the cases to wend their leisurely way through the lower courts without the disruption caused by the activist judges.

The imbroglio is addressed in the following article received yesterday from “Harvard Law Today” taking (except for Prof. Charles Fried) the view that activist lower-court judges “should reign supreme” (my interpretation).

Ordinarily, we select a book as our focus.

Nevertheless, during our 16 years of existence, we have often selected a focus for which the only available materials are articles, legal opinions, etc., etc.

In other words, we can function as a court that examines the available evidence.

After all, when we do select books, we often rip them to shreds anyway -- like any court would treat “expert witnesses” which, after all, is all book authors are.

******************************************************************* ... 25Sept2021

Harvard Law Today – 9/25/2021

Pay no attention to the justices behind the curtain --
Charles Fried, Richard Lazarus ’79, Tejinder Singh ’08, and Carol Steiker ’86 discuss the Supreme Court’s increasingly important emergency powers known as its “shadow docket”

Article by Lana Barnett – 2015 HLS Graduate – September 23, 2021

Charles Fried – HLS Professor since 1961 with a leave of absence to serve as U.S. Solicitor General 1985-1989.

Richard Lazarus – HLS Professor but unclear when he joined the faculty (after graduating HLS 1979, he taught at the law schools of Washington U in St. Louis, Indiana U. and Georgetown U. before joining the HLS faculty).

Carol Steiker – HLS Professor (graduated HLS 1986 but unclear when she joined the faculty).

Tejinder Singh – Graduated HLS 2008 - Instructor for the Harvard Supreme Court Litigation Clinic and partner in Goldstein Russell, a law firm that specializes in Supreme Court Practice.

[NB: it is unclear whether this article is reporting on a symposium or is based on separate interviews.]

[NB: “Harvard Law Today” is an official publication of HLS with an editorial staff of 7.]


When the U.S. Supreme Court issued an order just before midnight on September 1 that maintained Texas’ enactment of the most restrictive abortion law in the country, the public reactions that followed focused not just on the “what” of the Supreme Court’s order, but perhaps as importantly, the “how.” The majority opinion was unsigned, consisted of a single long paragraph, and was issued without full briefing, oral argument, or deliberation among the justices. It was the latest blockbuster use of the Supreme Court’s little-watched but increasingly important emergency powers, otherwise known as its “shadow docket.”

The “shadow docket,” a term coined in 2015, encompasses thousands of decisions made annually by the Supreme Court through a truncated decision-making process, sometimes released late at night in one- or two-sentence orders that often obscure how the justices voted or why the majority came to the conclusions that they did. These cases stand in contrast to the traditional merits docket, in which the Court reviews extensive briefs from the parties and other advocates in approximately 70 cases per year, generally hears oral argument, engages in a full deliberation among the justices, and ultimately issues binding, precedential decisions that outline the Court’s reasoning.

The Supreme Court has long issued short, procedural orders that generally have the effect of pausing lower court proceedings, but in recent years, this power has garnered increased attention and criticism. “The emergency orders docket provides a way, when necessary, for the Court to preserve the status quo,” explains Tejinder Singh ’08, an instructor for the Harvard Supreme Court Litigation Clinic and partner at Goldstein Russell, a firm that specializes in Supreme Court practice. “It is a necessary component of the Court’s ability to deal with and decide cases, and it is also one that we’ve seen more frequently getting used and abused both by litigants and in some cases the Court to make law without going through the Court’s usual plenary review processes,” Singh says.

The Court’s increasingly visible use of its traditionally hidden powers

Although the bulk of the shadow docket consists of orders that are both substantively and procedurally banal — extending deadlines, for instance, or denying petitions for review in routine matters — the ones that garner significant attention generally fall into two categories: cases in which a party seeks to uphold or challenge a newly enacted federal law, and last-minute requests for stays of execution.

For those who suspect that matters of national importance are cropping up more frequently on the shadow docket than in the past, the numbers bear out their observation. In four years, the Trump administration filed 41 emergency applications in the Supreme Court, compared to a total of only eight in the 16 preceding years in which presidents George W. Bush and Barack Obama ’91 were in the White House. Those cases touched on multiple matters of national significance, including COVID-19 restrictions in places of worship, the death penalty, the national census, immigration policies, and a ban on transgender troops in the military.

According to Harvard Law Professor Richard Lazarus ’79, the Trump administration’s eagerness to turn to the Supreme Court was almost certainly inspired by a particularly shocking decision issued toward the end of the Obama presidency. On Feb. 9, 2016, the Court delivered an emergency order blocking the implementation of the Clean Power Plan, an Environmental Protection Agency regulation that would have required a 32 percent reduction in U.S. carbon emissions by 2030.

In a 5-4 decision marking the last time Justice Antonin Scalia ’60 cast a vote before his death four days later, the Court for the first time in history agreed to block implementation of a federal regulation before any federal appeals court had reviewed it, and after the D.C. Circuit had already declined to issue the requested stay. Because the Trump administration then abandoned the Clean Power Plan, the matter never reached the Supreme Court on the merits, and the regulation died without ever going into effect.

According to Lazarus, this decision signaled a sea change. “Lawyers are asking for the Court to exercise significant rulings in the context of the shadow, in a way they never did before, because they got a signal that the Court is willing to do it,” Lazarus explained.

Likewise, says Harvard Law Professor Carol Steiker ’86, the Court has in recent years used the shadow docket to make momentous, literally life-altering decisions involving individuals seeking to avoid or alter the terms of capital punishment. The Court has long been the last possible stop for petitioners who have exhausted all other appeals, and midnight emergency orders either halting executions or allowing them to continue are not inherently new.

But Steiker argues that a major shift has occurred in the last few years, culminating in a series of surprising interventions at the end of the Trump administration, when the executive branch executed 13 people during its last six months in office — more people than had ever been executed in a single decade. In five cases, the executions took place only after the Supreme Court vacated decisions by lower courts that would have delayed the executions.

According to Steiker, the most jarring case involved Dustin Higgs, the last person to be executed by the federal government. There, the Supreme Court used the highly irregular procedure of agreeing to consider the case on the merits before judgment and summarily reversed a district court order that would have stopped the execution. No explanation was provided for the unusual move. “The lower courts wanted to take the time to have full briefing and argument and decide, and the Court not only didn’t do that itself, but it didn’t let the lower courts do that either,” Steiker explains. “That really raises a lot of concerns, especially when someone’s life is on the line.”

Steiker cited empirical research undertaken by one of her former students, Isaac Green ’22, in which he concluded that the Court has, in recent years, indeed drastically increased its interference with stays of executions granted by lower courts. Green’s analysis, which he plans to publish as a student note, connected this rapid escalation to the new Supreme Court conservative majority’s concern with avoiding gamesmanship and delay by those facing execution.

But as Steiker notes, many issues involving the death penalty—such as challenges to execution protocols and determinations of mental competency for execution—cannot be litigated until shortly before an execution is scheduled to occur.

“The Supreme Court, through its shadow docket in a number of Trump cases, did not allow litigation of a number of substantial constitutional and statutory issues raised in those cases,” she says. “The Court takes a very, very dim view of motions for stays of execution because a majority of justices attribute it, largely erroneously, to attempts at strategic delay by the defense bar.”

The shadow docket draws backlash

It is widely recognized, says Lazarus, that emergency orders are a poor way to make law. “No one thinks the justices should be deciding significant things based upon very limited briefing, no oral argument, and no meaningful deliberation,” he says.

But Lazarus argues that while it is easy to criticize the Supreme Court for using truncated procedures in controversial cases, that criticism tends to ebb and flow depending on the substantive impact of the decision being made by the Court. “If you read people’s reactions when the Court does this, they only complain if their ox is being gored,” Lazarus says.

Had the Supreme Court immediately acted in the Texas abortion case to enjoin the Texas law, Lazarus posits, pro-choice proponents, who brought the emergency petition to the Supreme Court, would have heralded the Court’s action as an appropriate means for the Supreme Court to step in in response to an outrageously unconstitutional state law, even though the Court would have done so without full briefing, oral argument, and deliberations. “It’s easy to say that this is not the right way to make decisions, but sometimes we like it, because we think what happened in the courts below is just outrageous.”

Singh agrees that critics of the shadow docket may well be fickle in the short term, but is concerned by the potential long-term impact of the Supreme Court increasingly weighing in on controversial matters before they can be fully litigated. “The Court’s credibility is on the line as its decision-making processes get diluted,” Singh says.

Singh is concerned that the use of the shadow docket in areas of significant public debate can undermine faith in the Court’s role as a trustworthy, neutral arbiter. When all the Supreme Court is doing is “pressing pause” on lower court litigation, Singh says, its role generally remains uncontroversial. But when the Court ventures into areas of law with significant national interest and actively interferes with the status quo, Singh says, its role is more precarious. “The reason the shadow docket sounds so ominous is because it smacks of secret decision-making processes that are far less transparent,” says Singh.

Both Singh and Lazarus pointed to the Supreme Court’s decisions in a series of cases involving COVID-19 restrictions in places of worship, in which the justices intervened to lift restrictions on the basis that they violated the First Amendment, as examples of the perils of the shadow docket. According to Singh, in those cases, the Court actively created new law that was more favorable to religious institutions than found in any Supreme Court precedent decided on the merits docket. “The most significant risk from shadow docket decision-making is that the Court’s one claim to transparency and accountability will be undermined when you have major decisions made with very little process beforehand.”

Harvard Law Professor Charles Fried, who served as solicitor general of the United States from 1985 to 1989, disagrees. “I think the fuss about the shadow docket lacks perspective,” he says. Fried notes that while the Supreme Court’s emergency orders prompt headlines in “big ticket cases,” lower courts make thousands of emergency decisions annually as well, many of which have widespread ramifications, with significantly less fanfare. For instance, Fried explains, in July 2020, the 11th Circuit issued an emergency stay of a Florida district court opinion in a case that essentially disenfranchised approximately 800,000 ex-felons before the 2020 presidential election. The district court decision would have allowed the ex-felons to vote without first paying off all court costs, fines, and fees, a requirement added by the state legislature after Florida voters overwhelmingly voted to allow former felons to vote once they completed their sentences.

Fried emphasizes that the Court’s emergency orders are not “decisions,” because the Court makes only procedural rulings rather than binding precedent on the shadow docket. But procedural decisions can have far-reaching substantive consequences, as in the Texas matter, where Fried acknowledges that “there’s going to be a lengthy interval during which women seeking abortions in Texas won’t be able to get them.”

Likewise, Steiker notes, procedural decisions in death penalty cases can bring abrupt endings to appeals that then never see the light of day on a merits docket. “Non-merits decisions, like lifting the stay on an execution, allow executions to go forward just as surely as if the Court had denied the petitions on the merits,” Steiker says. “They take effect as if the Court were deciding on the merits, but the Court doesn’t have to reason them out and doesn’t have to make law. They can just let things happen.”

The result, Steiker says, is often greater obfuscation by the very body trusted to make law that will bind federal and state courts nationwide. “A lot of the things we think of as associated with rule of law values—consistency, accountability, deliberation, transparency, opportunity to be heard fully—don’t happen in the shadow docket, and that’s true regardless of the substantive area of law at issue,” Steiker says.

In response to increasing public scrutiny, Congress in February held its first-ever hearing devoted to the shadow docket. Lawmakers considered possible legislation to increase the Court’s transparency, such as requiring justices to disclose their votes on divided emergency orders. Steiker believes it is unlikely, however, that monitoring the shadow docket will become a congressional priority in an era plagued with life-and-death concerns such as the pandemic, climate change, and criminal justice reforms. “This administration has a lot on its plate,” says Steiker. “Not everything will get done.”

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Example of Supreme Court Policing Lower Courts w/o Hearings

Post by johnkarls »

Originally Posted by johnkarls » Fri Oct 01, 2021 1:12 pm

Yesterday (Sept 30) saw a more-routine emergency petition to the U.S. Supreme Court to police a lower court with a peremptory ruling.

FIRST, yesterday’s petition did NOT involve a national injunction.

SECONDLY, yesterday’s petition did NOT involve an action of a trial-court judge.

INSTEAD, it is an example of traditional POLICING of lower courts.

By way of background, if immediate enforcement of a lower-court ruling would have irreparable consequences, the lower court will usually have the decency to suspend its ruling pending appeal.

And it is only necessary for the U.S. Supreme Court to intervene when lower courts fail to do so.

The U.S. Supreme Court’s Policing Power is exercised by individual justices to whom the various U.S. Courts of Appeal and their respective U.S. District Courts are assigned – the individual justice can issue w/o explanation any orders s/he sees fit or s/he can refer the matter to the entire U.S. Supreme Court to issue w/o explanation any orders that the entire court sees fit.

Brief Explanation of the Current Imbroglio Involving COVID-Vaccine Mandates

The following article from The Washington Post explains that the U.S. Second Circuit Court of Appeals approved NYC’s requirement that public-school teachers get vaccinated for COVID or be dismissed – with no third option of frequent testing.

Emergency petitions from the Second Circuit (and its District Courts) are under the jurisdiction of Justice Sonia Sotomayor who (as of a few minutes ago) has not acted.

A similar case involved Indiana University which required students to get vaccinated – with only an exception for religious or medical reasons.

On 8/2/2021 the U.S. Seventh Circuit Court of Appeals approved the Indiana University requirement.

Supreme Court Justice Amy Coney Barrett has jurisdiction over the Seventh Circuit (and its District Courts).

On 8/12/2021 Justice Barrett, without referring the matter to the entire court, rejected WITHOUT EXPLANATION an emergency petition from the Indiana University students to suspend the Seventh Circuit ruling pending an appeal to the Supreme Court.

The Supreme Court does NOT begin regular operations (quaintly called each year its “October Term” even though it stretches to the end of the following June) until next Monday, so the Indiana University students cannot even have considered by the other 8 justices their Petition for Certiorari (a request to the entire Supreme Court to hear their appeal in the normal manner of formal argument and legal briefs) before, presumably, having to sit out their fall semester at Indiana University.

[BTW, if she had been forced to explain her ruling, Justice Barrett might simply have claimed that sitting out a semester is not “irreparable damage” which, descending now into humor, might be viewed as an insult to an Indiana institution of higher learning from a graduate and former faculty member of the law school of a rival Indiana institution of higher learning. ]


The traditional POLICING of lower courts illustrated by these two COVID vaccination cases, has been expanded to address the recently-emerging issue of national injunctions issued by any of the 677 U.S. District Court Judges (their number is set by 28 U.S. Code Sec. 133) that any plaintiff who wants to create havoc FOR YEARS by suspending federal law enacted by Congress, Executive Orders promulgated by the President, or regulations issued by federal agencies – need only find a sympathetic ACTIVIST District Court Judge from the menu of 677 judges.

IMHO, the Harvard Law Today article confesses that some of the newer HLS faculty members have invented a way for such havoc to reign and are miffed that the traditional Supreme Court POLICING POWER over lower courts has been adapted to deal with their invention.

BTW, this is IMHO adroitly dealing with their invention case-by-case rather than in blanket fashion since there could, at least in theory, be a law/order/regulation that should be suspended nationally without losing any time.

************************************************************************* ... eme-court/

Washington Post – 9/30/2021

New York City educators ask the Supreme Court to stop the city’s vaccine mandate for school workers -
The four educators lost their case in the U.S. Court of Appeals for the 2nd Circuit
By Moriah Balingit

A group of New York City educators seeking to overturn the city’s coronavirus vaccine mandate on Thursday asked the Supreme Court to halt the mandate before it goes into effect next week.

New York City’s 148,000 school employees have until Friday to show proof of vaccination or to obtain a religious or medical exemption. If they fail to do so, the city can remove them from the payrolls Monday.

Many districts and states give school employees the option to get vaccinated or submit to regular testing. But a small number of jurisdictions — including Puerto Rico, Washington state and the District of Columbia — have gone further, requiring staff to get vaccinated without an option to get regularly tested. New York City wants to follow suit.

The legal battle comes as schools across the country report outbreaks in classrooms that have forced hundreds of thousands of students and teachers to quarantine. The delta variant, believed to be more contagious than its predecessors, has driven pediatric cases to record highs.

The vaccine mandates, like those over masks, have proved controversial in some places. Earlier this year, a group of Indiana University students sued to halt the school’s vaccine mandate, ultimately pleading their case to the Supreme Court.

Justice Amy Coney Barrett, who handles emergency petitions from that part of the country, rejected their plea without explanation. The lower courts relied on a 1905 Supreme Court decision, in which the court upheld a $5 fine against a man who refused to get a smallpox vaccine, in rejecting the argument that the students should be allowed to forgo a coronavirus vaccine.

The New York City educators — Rachel Maniscalco, Evelyn Arancio, Diana Salomon and Corinne Lynch — argue in their suit that the vaccine mandate is “draconian” and unconstitutional and that it unjustly deprives them of their right to do their jobs. In the petition filed Thursday, their attorneys said that moving forward with the mandate could push thousands of people out of the workforce, leading to staff shortages and further disruptions to the school day.

About 89 percent of all school staff — including 92 percent of teachers — were vaccinated as of Thursday, according to the city education department.

Last week, a federal judge issued an emergency injunction halting the mandate. It was overturned within a matter of days by a three-judge panel, paving the way for the city to implement the mandate.

The educators are hoping the high court will block the mandate and hear their challenge. Their petition was directed to Justice Sonia Sotomayor, who is responsible for emergency petitions from the U.S. Court of Appeals for the 2nd Circuit.

Katie O’Hanlon, a spokeswoman for the New York City Department of Education, said the educators “have no valid claims and have stated no basis for the Court’s intervention.”

“Courts have spoken. The Health Department has the authority to implement a mandate that is firmly grounded in science and the expertise of public health officials from across the nation,” O’Hanlon said.

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The U.S. Supreme Court vs. Lower-Court National Injunctions – In The Headlines Again

Post by johnkarls »

Originally Posted by johnkarls » Mon Apr 24, 2023 8:59 am
This issue has made the headlines again.

This time on another pivotal issue – access to the most popular abortion pill.

And this time to preserve order since the lower courts had inconsistent positions.

In summary, anti-abortion forces had filed suit in the Amarillo Division of the U.S. Eastern District Court of Texas knowing that its only Judge was Matthew Kacsmaryk, a Roman Catholic and staunch opponent of abortion. Predictably, Judge Kacsmarik issued a de facto nationwide injunction against the use of mifepristone by suspending the FDA’s approval of the drug.

By the time the U.S. Supreme Court reinstated the FDA’s approval pending the lawsuit making its leisurely way to the U.S. Supreme Court -- (1) the U.S. Fifth Circuit Court of Appeals (which has jurisdiction over the U.S. District Courts in, inter alia, Texas) had affirmed by a 2-1 vote the nationwide injunction pending a decision on the merits by the Fifth Circuit, and (2) a U.S. District Court Judge in the state of Washington ruled in favor of 17 state Attorneys General that the FDA cannot restrict the use of mifepristone in the 17 states represented in the lawsuit or in the District of Columbia.

There follows a fuller explanation from the Washington Post.

*************************************************** ... tion=alert

Supreme Court preserves access to key abortion drug as appeal proceeds
By Robert Barnes and Ann E. Marimow
(David Ovalle, Rachel Roubein and Caroline Kitchener contributed to this report.)
April 21, 2023

The Supreme Court on Friday preserved full access for now to a key drug that has been taken by millions of women to terminate early pregnancies, its first major abortion-related decision since overturning Roe v. Wade’s constitutional guarantee of abortion rights last year.

The justices put on hold a lower court’s ruling in favor of antiabortion groups, which said the Food and Drug Administration was wrong to make the drug mifepristone more widely available. A legal battle over whether to permanently reimpose restrictions, and whether the FDA had properly approved use of the drug more than 20 years ago, will continue.

As is typical in emergency actions, the majority did not explain its reasoning for putting the lower court decision on hold. In the only noted dissents, Justices Clarence Thomas and Samuel A. Alito Jr. said they would not have granted the Biden administration’s request for a stay of the decision by a panel of the U.S. Court of Appeals for the 5th Circuit.

Thomas did not explain his reasoning. Alito said the administration and the public would not have been harmed by agreeing with the lower court, which wanted to reimpose restrictions loosened by the FDA in recent years.

“It would simply restore the circumstances that existed (and that the Government defended) from 2000 to 2016 under three Presidential administrations,” Alito wrote. He disputed that the court’s intervention at this time would have sent a signal: “Contrary to the impression that may be held by many, that disposition would not express any view on the merits of the question whether the FDA acted lawfully in any of its actions regarding mifepristone.”

The 5th Circuit next month will review the merits of the case brought by antiabortion groups against the FDA’s regulation of mifepristone — a review that will be conducted by a separate, and likely different, three-judge panel than the one that made the initial ruling. That merits decision will almost surely be appealed to the Supreme Court no matter the outcome. But until then, the justices’ Friday order says the status quo will remain in place: Mifepristone will be available under existing FDA regulations nationwide.

President Biden quickly praised the court’s action. “I continue to stand by FDA’s evidence-based approval of mifepristone, and my Administration will continue to defend FDA’s independent, expert authority to review, approve, and regulate a wide range of prescription drugs.” he said in a statement. “The stakes could not be higher for women across America. I will continue to fight politically-driven attacks on women’s health. But let’s be clear — the American people must continue to use their vote as their voice, and elect a Congress who will pass a law restoring the protections of Roe v. Wade.”

The court’s order Friday was the latest development in what has been a rapid and at times confusing legal battle over mifepristone, which is used as part of a two-drug regimen in more than half of the nation’s abortion procedures. The second drug, misoprostol, can also be used on its own to terminate early pregnancies, but the two drugs in tandem reduce cramping and bleeding.

Medications to terminate pregnancy have increased in importance as states limit or ban abortions after the Supreme Court’s ruling last June in Dobbs v. Jackson Women’s Health Organization, in part because the drugs can be sent by mail and taken at home.

Drugmakers, the Biden administration and abortion providers say all the agency’s decisions are science-based and proper, based on two decades of accumulated clinical studies of the drug’s use. Antiabortion groups have attacked the FDA’s approval of mifepristone, as well as more-recent changes making the drug more accessible.

Both sides vowed to fight on after Friday’s order.

“The FDA must answer for the damage it has caused to the health of countless women and girls and the rule of law by failing to study how dangerous the chemical abortion drug regimen is and unlawfully removing every meaningful safeguard,” Erik Baptist, senior counsel for the Alliance Defending Freedom, which represents the antiabortion groups, said in a statement. “We look forward to a final outcome in this case that will hold the FDA accountable.”

The justices were considering a temporary but broad 5th Circuit order reversing several FDA actions since 2016 that increase access to mifepristone. The agency had approved the drug’s use through 10 weeks of pregnancy instead of seven, allowed patients to get mifepristone through the mail and authorized prescriptions by medical professionals other than doctors.

The appeals court action followed U.S. District Judge Matthew Kacsmaryk’s recent ruling in Texas to suspend the FDA’s approval of mifepristone altogether. More than 5 million women have used mifepristone to end their pregnancies since it was first cleared for use in the United States in 2000.

The Biden administration and drugmakers called Kacsmaryk’s decision an unprecedented attack on the expertise of the FDA, which relied on data from dozens of clinical trials when it approved the drug. They told the Supreme Court that the lower court rulings would create chaos for abortion providers and upend the FDA’s regulatory authority, with far-reaching repercussions for other, non-abortion-related drugs.

Shortly after the ruling, several abortion providers emphasized that access to mifepristone will remain the same, and said there will be no changes in their protocols as the case winds its way through the courts. For days, providers had been bracing for the possibility that the process for medication abortions could be upended.

“The greatest feeling right now is relief,” said Melissa Grant, the chief operations officer of Carafem, a group of abortion clinics and telehealth services. “We were poised and ready to potentially react to one of many possible outcomes, all of which potentially decreased access to what amounts to life-changing medication for women across our country.”

But, she added, “we are aware this is not the end, and that there’s still a great deal of concern about the future of abortion care in our country.”

The Alliance for Hippocratic Medicine, an association of antiabortion doctors and others, filed its lawsuit in Amarillo, where Kacsmaryk — a nominee of President Donald Trump with long-held antiabortion views — is the sole sitting judge. The group has a mailing address in Tennessee, records show, and incorporated in Texas several months before submitting its legal challenge. The group says the FDA succumbed to political pressure in approving mifepristone and then lifting restrictions over its use.

Kacsmaryk agreed with the alliance’s claim that the FDA did not follow proper procedure or sufficiently consider safety concerns. The judge’s April 7 ruling was the first time a court issued an order to suspend a long-approved medication. His language echoed terminology used by antiabortion activists, referring to abortion providers as “abortionists” and to fetuses and embryos as “unborn humans.”

The Justice Department and Danco Laboratories, the pharmaceutical company that makes mifepristone, appealed the ruling to the 5th Circuit.

The appeals court panel, which was charged with considering the government’s request for a stay, agreed 2-1 with Kacsmaryk that the FDA failed to examine relevant data when it eliminated certain safeguards in 2016. The panel also said the individual doctors and antiabortion associations probably have sufficient legal grounds to proceed with their challenge because there are instances when a medication abortion is unsuccessful and requires additional treatment.

A different panel of judges is expected to hold oral arguments on Kacsmaryk’s decision on May 17.

In the government’s request for a stay of the 5th Circuit decision, Solicitor General Elizabeth B. Prelogar told the Supreme Court that challengers should not be granted legal standing because they do not take or prescribe mifepristone. The challengers, she wrote, were ignoring the significant chaos a ruling in their favor would cause for patients, prescribers and the health-care system.

“Nor do they justify the harm of denying women lawful access to a drug under conditions FDA determined are safe and effective and instead requiring them to undergo invasive surgical procedures,” Prelogar wrote.

Adding to the complex legal situation, on the same day that Kacsmaryk ruled, a federal judge in Washington state issued a contradictory decision in a separate mifepristone-related lawsuit filed by Democratic attorneys general. The judge ordered the FDA not to make any changes to the availability of the drug in 17 states and the District of Columbia, all of which are part of the litigation.

In his four-page dissent, Alito criticized some of his colleagues for agreeing to put the lower court decisions on hold without more consideration, singling out past opinions on that issue from Justices Sonia Sotomayor, Elena Kagan and Amy Coney Barrett.

He discounted the FDA’s argument that the rulings from Texas and Washington would have created “chaos,” and expressed skepticism that the regulatory agency would not have found a way to keep mifepristone on the market.

“The FDA has previously invoked enforcement discretion to permit the distribution of mifepristone in a way that the regulations then in effect prohibited, and here, the Government has not dispelled legitimate doubts that it would even obey an unfavorable order in these cases, much less that it would choose to take enforcement actions to which it has strong objections,” Alito wrote.

The cases are FDA v. Alliance for Hippocratic Medicine and Danco Laboratories v. Alliance for Hippocratic Medicine.

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U.S. Supreme Court Leaves In Place Pending Appeal Illinois Restrictions On AR-15-style Weapons and Large Ammo Magazines

Post by johnkarls »

Originally Posted by johnkarls » Fri May 19, 2023 1:34 pm
. ... tion=alert

Supreme Court leaves in place Illinois restrictions on military-style weapons
The Supreme Court turned down a request to put on hold laws banning AR-15-style weapons and large ammunition magazines
By Robert Barnes - a Washington Post reporter and editor since 1987.
May 17, 2023 at 11:28 a.m. EDT

The Supreme Court on Wednesday left in place for now Illinois’ new ban on the purchase and sale of AR-15-style rifles and large ammunition magazines, in the court’s first consideration of gun-control legislation since its conservative majority made it more difficult for governments to justify such restrictions.

The court without comment turned down a request from a gun shop owner from Naperville and a national gun rights organization to keep both the state law and a local measure passed by Naperville from being implemented while legal battles continue. The order comes as the nation has recently weathered dozens of mass killings, many of them involving the kinds of weapons Illinois and the city seek to ban.

It is not unusual in emergency requests for the court not to provide its reasoning. There were no noted dissents to the order.

The Supreme Court’s action follows a decision by the U.S. Court of Appeals for the 7th Circuit to allow the laws to take effect while courts consider constitutional challenges. Gun shop owners and other organizations have said the laws violate the Supreme Court’s decision last year in New York State Rifle & Pistol Assoc. v. Bruen that extended Second Amendment protections.
Supreme Court finds New York law violates right to carry gun outside the home

The 7th Circuit has scheduled a hearing on the issue for next month. Because of the preliminary status of the litigation, the Supreme Court’s decision not to upend the appeals court’s consideration of the laws does not necessarily provide guidance for how the justices would rule if they were to consider the merits of the challenge.

Naperville and the state acted after a mass killing in the state last July 4. A shooter armed with a semiautomatic AR-15-style rifle opened fire on a parade in Highland Park, a Chicago suburb. The shooter fired 83 rounds in less than a minute, killing seven people and wounding 48. The alleged gunman was apprehended and charged with murder.

A Highland Park ordinance prohibited the sale of such weapons, but the assailant bought the weapon elsewhere in the state. Soon after the shooting, Naperville, west of Chicago, passed an ordinance prohibiting the sale of “assault weapons.” In January, the state legislature passed the Protect Illinois Communities Act (PICA), which restricts the “sale, purchase, manufacture, delivery, or importation of ‘assault weapons’ and ‘large capacity ammunition feeding devices,’” subject to exceptions for law enforcement, members of the military and others with similar firearms training.

Gun groups immediately challenged the law, with differing results.

U.S. District Judge Virginia M. Kendall turned down a request to put the laws on hold — the case now at the Supreme Court.

“The text of the Second Amendment is limited to only certain arms, and history and tradition demonstrate that particularly ‘dangerous’ weapons are unprotected,” Kendall wrote.

She added: “Because assault weapons are particularly dangerous weapons and high-capacity magazines are particularly dangerous weapon accessories, their regulation accords with history and tradition. Naperville and Illinois lawfully exercised their authority to control their possession, transfer, sale, and manufacture by enacting a ban on commercial sales.”

The gun that divides the nation

But U.S. District Judge Stephen P. McGlynn, acting on a challenge to the Illinois law brought in a different part of the state, disagreed.

“Can the senseless crimes of a relative few be so despicable to justify the infringement of the constitutional rights of law-abiding individuals in hopes that such crimes will then abate or, at least, not be as horrific?” McGlynn wrote. “More specifically, can PICA be harmonized with the Second Amendment of the United States Constitution and with Bruen? ... The simple answer at this stage in the proceedings is ‘likely no.’”

The 7th Circuit, though, allowed the laws to proceed while appeals continued.
Robert Bevis, owner of Law Weapons and Supply in Naperville, and the National Association for Gun Rights brought the case to the Supreme Court seeking an emergency stay. Bevis claims that the laws have cost him thousands of dollars in lost sales.

His lawyers said Kendall’s ruling did not comply with the Supreme Court’s findings.

“An arm cannot be subjected to a categorical ban unless it is both dangerous and unusual,” they told the Supreme Court, noting that at least 20 million AR-15s and similar weapons are owned by millions of Americans. “An arm that is commonly possessed by law-abiding citizens for lawful purposes is, by definition, not unusual.”

Naperville and Illinois argued that there was no reason for the court to step in at this time, when the 7th Circuit already is scheduling a hearing on the law.

Most district courts have said such bans on sales are constitutional, Illinois Attorney General Kwame Raoul (D) told the Supreme Court, and no appeals court or state high court has ruled on the issue. “At the very least, further percolation is warranted” before the justices get involved, he wrote.

Lawyers for Naperville argued that the request from Bevis was not an emergency. “The loss of business from being unable to sell one category of one possible product line at a gun store simply cannot carry sufficient weight against the danger of a murdered or permanently maimed Naperville resident, senselessly shot by an assault rifle,” the city said in its brief.

The case is National Association for Gun Rights v. City of Naperville and State of Illinois.


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