Unikowsky on the Fifth Circuit’s Mifespristone decision
Adam Unikowsky holds another important position in his subgroup, this time taking charge of the Fifth Circuit decision on the stay in the mifepristone case: “Mifepristone and the Rule of Law, Part III The Fifth Circuit’s ruling is also wrong.” He summarizes: “The decision of the Fifth Circuit is less bad than the decision of Judge Kacsmaryk. However, she is still very, very bad. In this article, I will attempt to explain why.
Just a small excerpt:
[In the most relevant precedent, the Supreme] The court then went through several previous cases and explained: “This requirement to name the relevant members has never been removed in the light of statistical probabilities, but only when all members of the organization are affected by the disputed activity.”
Well, there it is. I don’t think even the Fifth Circuit could say with a straight face that all members of complainant organizations face a concrete risk of harm based on hypothetical patients entering emergency rooms, especially since only a small number of members have submitted statements regarding alleged harm in the past. The Fifth Circuit instead estimated that an unspecified percentage of physicians are statistically likely to encounter emergency room patients who suffered complications from mifepristone, which is Exactly reasoning rejected in The summers. The rule of law requires that legal principles be applied neutrally. Article III does not apply differently depending on whether claimants support progressive or conservative causes.
Moreover, conceptually, the Fifth Circuit approach would significantly expand the law of standing. Any a federal rule that could in some way be seen as reducing “safety” could be challenged by a sufficiently reasoned complaining organization. Suppose the National Highway Traffic Safety Administration relaxes some airbag requirements. According to the Fifth Circuit theory, the American Association of Pro-Car Safety Physicians may sue, on the theory that an undetermined additional number of people will be injured in car crashes and go to the emergency room, and an undetermined number of Member physicians will have to tend to their wounds, stressing them.
Read it all.
