To the contrary, it’s all right out there. Judge Kacsmaryk explains in the first of his opinion’s 67 footnotes that “this court uses ‘unborn human’ or ‘unborn child’ terminology throughout this order, as appropriate.” Medication abortion “starves the unborn human until death” is his description of how the drug works. This language amounts to a big thank-you to the religious right to which Judge Kacsmaryk has devoted part of his career and which propelled him to the seat he now occupies in Amarillo, Texas. At the time of his nomination by President Trump, he was deputy general counsel of First Liberty Institute, a Christian-right litigating organization that targets L.G.B.T.Q. rights along with reproductive rights.
While the Fifth Circuit panel (Judges Andrew Oldham and Kurt Engelhardt were appointed by Mr. Trump, and Judge Catharina Haynes by President George W. Bush) also refers to an “unborn child,” the opinion’s embrace of religion is a bit subtler. It emerges in the opinion’s crucially important discussion of the plaintiffs’ standing.
As I suggested in my thought experiment, standing is an essential aspect of any federal lawsuit. It derives from the limitation in the Constitution’s Article III on the jurisdiction of the federal courts to only consider actual “cases” and “controversies.” Federal courts can’t decide abstract questions or give advisory opinions. In modern usage, a plaintiff has to show 1) “injury in fact” from 2) something the defendant did and that 3) can be redressed by a favorable court decision. This three-part test sets quite a high bar and determines who gets into federal court with what kinds of claims. For years, liberals wanted the courthouse doors kept as wide open as possible, while conservatives took a narrow approach to standing. Unsurprisingly, that polarity is now reversed.
What, according to the Fifth Circuit, was the doctors’ “injury in fact” that gave them the ability to challenge the abortion pill’s approval? In addition to the stress the plaintiffs said they felt from having to treat complications from mifepristone, “the doctors also face an injury from the irreconcilable choice between performing their jobs and abiding by their consciences.”
The issue, evidently, is that if the medication has not accomplished a complete abortion, a doctor who then sees the woman on an emergency basis might have to perform a further procedure. The opinion quotes an unidentified doctor who says “I object to abortion because it ends a human life” and “the F.D.A.’s actions may force me to end the life of a human being in the womb for no medical reason.”
To describe what is problematic about permitting this kind of claim to prop open the courthouse door, I’ll quote a widely circulated blog post by Adam Unikowsky. As a former law clerk to Justice Antonin Scalia who now practices before the Supreme Court, his credentials for raising the alarm are no doubt better than mine:
I’d think that most doctors — even staunchly pro-life doctors — wouldn’t think it’s a “conscience violation” if they had to save the life of a woman who showed up in the emergency room. Emergency room doctors have to help patients who have been in lots of different life situations, including life situations that the doctors might not approve of. If treating a patient makes you feel “complicit” in whatever the patient did to come to the emergency room, being an emergency room doctor is not the job for you. I find it remarkable that these physicians seek to police the activities of all women and all doctors based on these idiosyncratic convictions.
And, I’ll add, it’s remarkable that three federal appellate judges gave these plaintiffs a green light. (Judge Haynes would have stayed the district court’s entire order for “a brief period” and left that issue “to the oral argument merits panel which receives this case” on appeal. But she agreed with her two colleagues to deny the motion to dismiss the case.)
This latest abortion case is not the only recent decision to raise the question of whether, in the eyes of the group now ascendant on the federal bench, there can ever be a religious claim that goes too far. Last month, another federal judge in Texas, one with a long history of antipathy toward the Affordable Care Act, invalidated many of the preventive health care measures that the law has required private insurance policies to cover at no cost to patients. The principal basis for Judge Reed O’Connor’s ruling, which the Biden administration is appealing, was his conclusion that the expert advisory panel that devised the list of covered services was not constitutionally appointed. That portion of the opinion applies across the board, eradicating some of Obamacare’s most important benefits just as the law is gaining popular and political support in red states.
