Danko Laboratories v. Alliance for Hippocratic Medicine (598 U.S. -- (21 April 2023)): Burlesquing Abortion Jurisprudence Through the Shadow Docket

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 The two great branches of ridicule in writing are comedy and burlesque. The first ridicules persons by drawing them in their proper characters; the other, by drawing them quite unlike themselves. Burlesque is therefore of two kinds; the first represents mean persons in accoutrements of heroes, the other describes great persons acting and speaking like the basest among the people. [Addison, "Spectator," Dec. 15, 1711]

 A BURLESQUE show, to the average person, is a rather naughty form of entertainment which men attend for the purpose of vicarious thrills and semi-obscenity. [The American Parade, 1927]

Since the term was proposed in 2015--shadow docketing has become a popular space in which to burlesque (in both senses of the term) emerging constitutional jurisprudence (if not normative then institutional). This burlesque appears to be increasingly popular with its principal audiences  whose taste for continuously produced episodes of the long running national elite parody--Essentialist Follies--now finds expression in the working style of the courts as it produces both high and low theater. Whether it is as reflexive of the culture in which it both defines and in which it is embedded as its predecessor  sexist body and bawdy shows of a century ago remains to be seen. Certainly it appears to be more long lasting as a cultural reflection-projection. 

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The current jurisprudence of abortion (with it the consequential jurisprudence for the commerce and religion clauses as well as for the constitutional contours of administrative law) appears fertile ground for the further development of this increasingly rarefied, detached and self-referencing world that appears autonomous. The nature of that development may be hinted at in Danko Laboratories v. Alliance for Hippocratic Medicine (598 U.S. -- (21 April 2023). The case is a sideways manifestation of the battle over the power of organized American sub-collectives to use the courts (as their predecessors did in generations past) for the advancement of their version of social justice projects for which the judicial power is an essential element of national discipline.  In Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration (No. 2:22-cv-00223-Z), Plaintiffs challenged the U.S. Food and Drug Administration's approval of mifepristone, a drug frequently used in medical abortion procedures over two decades before this litigation was initiated.  Burlesque. The initial object might have been its most potent--to obtain a nationwide preliminary injunction banning sales of the drug until some time in the future.  At that point, irrespective of the outcome of the case, the markets for such a drug might be disrupted beyond repair.  Such a preliminary injunction was issued by the judge sitting in the Northern District of Texas hearing the case.  Economics. That injunction was modified by the 5th Circuit Court of Appeals. Almost immediately thereafter another judge of the same rank in Washington state issued an injunction that FDA to maintain the distribution of mifepristone in 16 states and the District of Columbia. Politics.

That caused the drug manufacturer to seek a stay of that injunction before the Supreme Court. That disposition--ostensibly procedural but effectively claim preclusive given its effects (though certainly not embraced by its forms), and thus the power of the shadow docket)--then produced its own burlesque in the form of the most curious dissent  written by the ever protective (of his vision for abortion orthodoxy achieved one way and another) Justice Alito. The burlesque comes in the form of a delightful romp through the usual  inconsistencies of the justices as they prance from case to case effecting rough justice through the shadow docket to suit the times and context. That romping, the good Justice Alito now declaims, now appears more like the lines from Finale of the Three Penny Opera than from he might have hoped for the court. 

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It is always fun when people who live in a neighborhood of glass houses throw projectiles of hypocrisy at their neighbors' homes. Everyone is going to get cut up and the neighborhood eventually will become unlivable. Bad faith all around perhaps--at its worst.  But what is a little hypocrisy among friends in the service of larger causes. Justice Alito suggests, moreover that the Supreme court "players" are themselves being played.  Naughty naughty (though it is hard to understand the code of honor within the strategic grifter culture described):

It should not be given if the moving party has not acted equitably, and that is the situation here. The Food and Drug Administration (FDA) has engaged in what has become the practice of “leverag[ing]” district court injunctions “as a basis” for implementing a desired policy while evading both necessary agency procedures and judicial review. Arizona v. City and County of San Francisco, 596 U. S. ___, ___ (2022) (ROBERTS, C. J., concurring) (slip op., at 2). (Alito, dissenting, supra).

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And of course, there is no irreparable harm--a conclusion that can only come from a person  and an institution so far removed from business, that such a statement could, on their computers, appear plausible as a textual expression. 

But no matter.  The audience has been warmed up by the opening act (Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration (No. 2:22-cv-00223-Z),) and the burlesque clownery (Danko Laboratories v. Alliance for Hippocratic Medicine (598 U.S. -- (21 April 2023)). One is at last ready for the main event. 

The text of the Supreme Court's Stay and Justice Alito's dissent follows. 

 

 

Cite as: 598 U. S. ____ (2023) 1 ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 22A901 _________________

DANCO LABORATORIES, LLC v. ALLIANCE FOR HIPPOCRATIC MEDICINE, ET AL.

ON APPLICATION FOR STAY _________________

No. 22A902 _________________

FOOD AND DRUG ADMINISTRATION, ET AL. v. ALLIANCE FOR HIPPOCRATIC MEDICINE, ET AL.

ON APPLICATION FOR STAY [April 21, 2023]

The applications for stays presented to JUSTICE ALITO and by him referred to the Court are granted. The April 7, 2023 order of the United States District Court for the Northern District of Texas, case No. 2:22–cv–223, is stayed pending disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought. Should certiorari be denied, this stay shall termi- nate automatically. In the event certiorari is granted, the stay shall terminate upon the sending down of the judg- ment of this Court.

JUSTICE THOMAS would deny the applications for stays.

JUSTICE ALITO, dissenting from grant of applications for stays.

In recent cases, this Court has been lambasted for staying a District Court order “based on the scanty review this Court gives matters on its shadow docket,” Merrill v. Milli- gan, 595 U. S. ___, ___ (2022) (KAGAN, J., dissenting) (slip op., at 2). In another, we were criticized for ruling on a stay application while “barely bother[ing] to explain [our] conclusion,” a disposition that was labeled as “emblematic of too much of this Court’s shadow-docket decisionmaking— which every day becomes more unreasoned.” Whole Woman’s Health v. Jackson, 594 U. S. ___, ___–___ (2021) (KAGAN, J., dissenting from denial of application for injunctive relief) (slip op., at 1–2). And in a third case in which a stay was granted, we were condemned for not exhibiting the “restraint” that was supposedly exercised in the past and for not “resisting” the Government’s effort to “shortcut” normal process. Barr v. East Bay Sanctuary Covenant, 588 U. S. ___, ___ (2019) (SOTOMAYOR, J., dissenting) (slip op., at 5). Cf. Does 1–3 v. Mills, 595 U. S. ___, ___ (2021) (BARRETT, J., concurring in denial of application for injunctive relief) (slip op., at 1) (warning that the Court should not act “on a short fuse without benefit of full briefing and oral argument” in a case that is “first to address the questions presented”).

I did not agree with these criticisms at the time, but if they were warranted in the cases in which they were made, they are emphatically true here. As narrowed by the Court of Appeals, the stay that would apply if we failed to broaden it would not remove mifepristone from the market. It would simply restore the circumstances that existed (and that the Government defended) from 2000 to 2016 under three Presidential administrations. In addition, because the applicants’ Fifth Circuit appeal has been put on a fast track, with oral argument scheduled to take place in 26 days, there is reason to believe that they would get the relief they now seek—from either the Court of Appeals or this Court—in the near future if their arguments on the merits are persuasive.

At present, the applicants are not entitled to a stay because they have not shown that they are likely to suffer irreparable harm in the interim. The applicants claim that regulatory “chaos” would occur due to an alleged conflict between the relief awarded in these cases and the relief provided by a decision of the United States District Court for the Eastern District of Washington. It is not clear that there actually is a conflict because the relief in these cases is a stay, not an injunction, but even if there is a conflict, that should not be given any weight. Our granting of a stay of a lower-court decision is an equitable remedy. It should not be given if the moving party has not acted equitably, and that is the situation here. The Food and Drug Administration (FDA) has engaged in what has become the practice of “leverag[ing]” district court injunctions “as a basis” for implementing a desired policy while evading both necessary agency procedures and judicial review. Arizona v. City and County of San Francisco, 596 U. S. ___, ___ (2022) (ROBERTS, C. J., concurring) (slip op., at 2).

The Washington District Court enjoined the FDA from altering its current practice regarding mifepristone—some- thing that the FDA had never hinted it was contemplating. The FDA did not appeal that appealable order, and when seven States that might take such an appeal asked to inter- vene, the FDA opposed their request. This series of events laid the foundation for the Government’s regulatory “chaos” argument.

Once this argument is put aside, the applicants’ argument on irreparable harm is largely reduced to the claim that Danco could not continue to market mifepristone because the drug would be mislabeled and that distribution could not resume until Danco jumped through a series of regulatory steps that would be largely perfunctory under present circumstances. That would not take place, how- ever, unless the FDA elected to use its enforcement discretion to stop Danco, and the applicants’ papers do not provide any reason to believe the FDA would make that choice. The FDA has previously invoked enforcement discretion to permit the distribution of mifepristone in a way that the regulations then in force 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.

For these reasons, I would deny the stay applications. 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. Rather, it would simply refuse to take a step that has not been shown as necessary to avoid the threat of any real harm during the presumably short period at issue.