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New York Times
22 Apr 2023

NextImg:Opinion | Religion Has Friends Among Judges in High Places

Tylenol, the familiar brand name for acetaminophen, is known to cause liver damage when taken in doses that exceed the recommended daily maximum. The Food and Drug Administration, which approved acetaminophen as a prescription drug in 1951 and later authorized it for over-the-counter use, requires the drug’s packaging to include a stern warning of the risk of “severe liver damage” if someone takes too much. Still, people who take Tylenol sometimes end up with liver problems.

Here’s a thought experiment:

Suppose that some doctors, who may or may not ever encounter a patient with a Tylenol-induced liver problem, say that the care these patients require is exceedingly stressful and would take them away from attending to the needs of other patients. So the doctors sue the F.D.A., demanding that the agency withdraw its approval of acetaminophen, and a Federal District Court judge agrees.

The agency appeals, challenging the doctors’ legal standing to bring such a lawsuit. Without a plaintiff who meets the strict test for standing, federal courts must dismiss a case for lack of jurisdiction. But to the F.D.A.’s shock, a panel of three federal judges allows the Tylenol case to proceed. (The F.D.A.’s shock is understandable. “Doctors would have standing to challenge F.D.A. approval of any drug” under the judge’s ruling, the agency argues.)

“As a result of F.D.A.’s failure to regulate this potent drug,” the court explains, “these doctors have had to devote significant time and resources to caring for” those suffering from the drug’s harmful effects. The judges note that the plaintiffs face “enormous stress and pressure” from treating these patients, observing that one doctor even testified to the strain from “some of the most emotionally taxing work I have done in my career.” Look at your label, the judges tell the flabbergasted F.D.A. You can’t deny that “serious complications” were “certainly impending,” and yet you let this drug come on the market.

As readers may have deduced by now, my thought experiment substitutes Tylenol for the abortion drug mifepristone. Each quotation in the preceding paragraphs is from the Justice Department’s emergency motion for a stay of the district court decision or the opinion of a three-judge panel of the United States Court of Appeals for the Fifth Circuit issued on April 12. While the appeals panel said it would allow the pill to remain on the market, it substantially restricted the availability of what is a demonstrably safe and effective drug that was first approved in 2000 and has been used since then by millions of women. The plaintiffs, who would have been laughed out of any court that hadn’t been taken over by appointees of former President Donald Trump, are four anti-abortion medical organizations and four individual anti-abortion doctors.

And here’s my question: What is the difference between my hypothetical Tylenol case and the actual case against mifepristone? In one word, religion.

No one’s theology that I’m aware of regards a liver as an “unborn human,” the phrase that the federal district judge Matthew Kacsmaryk deployed throughout his opinion that would have taken mifepristone off the market entirely — although of course a liver is essential to life, and without a functioning one an actual human will die. The basis for the belief that a fetus in the first 10 weeks of pregnancy — the time limit the F.D.A. has set for medication abortion — is the moral equivalent of a baby is theological. Judge Kacsmaryk and the Fifth Circuit judges who subsequently trimmed back somewhat on his absolutist order are certainly entitled to their beliefs. What their lifetime commissions as federal judges do not entitle them to is to project those beliefs onto the rest of us.

The stay of Judge Kacsmaryk’s decision that the Supreme Court issued Friday simply restored, temporarily, the status quo in which medical evidence, and medical evidence alone, determined which medications would be available to the American public and under what regulations. The unsigned order, issued over dissenting votes by Justices Samuel Alito and Clarence Thomas, suggested nothing about how the court would decide the merits of the case against mifepristone.

I’m not suggesting that there is anything cagey or underhanded about the way Judge Kacsmaryk and the judges on the Fifth Circuit panel have seemingly permitted religion to shape their responses to the plaintiffs’ outlandish and counterfactual claims about mifepristone’s dangers and the F.D.A.’s derelictions.

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.

But another portion of the opinion is a specific and special gift to employers who claim that their opposition to Obamacare’s mandatory coverage provision is motivated by religion. The case, Braidwood Management v. Becerra, was filed in 2020 by a group of plaintiffs led by Steven Hotze, a physician and prominent Texas Republican donor who described himself in the complaint as a Christian who “operates his business according to Christian principles and teaching.”

At that time, the H.I.V. prevention drug regimen known as PrEP was about to be added to the list of medications that insurers had to cover. Dr. Hotze’s company, Braidwood Management Inc., was self-insured, and he asserted that he could not permit his insurance plan to cover the PrEP drugs for his approximately 70 employees “because these drugs facilitate behavior such as homosexual sodomy, prostitution and intravenous drug use,” all of which, he said, were contrary to his “sincere religious beliefs.” He was unwilling “to allow his health plan to encourage these behaviors by paying for preventive care needed by those who choose to engage in this conduct.”

Judge O’Connor bought the argument, first in a ruling last September and then in the decision last month that amplified his discussion of the religious claim. The Affordable Care Act “forces these plaintiffs to choose between purchasing health insurance that violates their religious beliefs and foregoing conventional health insurance altogether,” he wrote. Relying on the Religious Freedom Restoration Act, the federal law that the Supreme Court invoked nine years ago to undercut the Affordable Care Act’s original contraceptive mandate, the judge said the government had failed to show why requiring coverage of the PrEP drugs served the public’s “compelling interest.”

We have to take a deep breath here. This is a religious complicity claim run amok. Lives are at stake, just as they were two years ago, when the Supreme Court turned its back on public health during the Covid pandemic and struck down limitations on the size of religious gatherings. The plaintiffs in the Braidwood case claim to be acting as Christians. That’s a claim I’m not qualified to assess. But I can say this much: They do, at the least, have friends in high places.

Linda Greenhouse, the recipient of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008 and was a contributing Opinion writer from 2009 to 2021.

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