The Fifth Circuit kinda sorta froze part of Judge Kacsmaryk's deeply flawed mifepristone ruling in a deeply flawed ruling of its own, one that puts the Supreme Court in a very awkward position
In fairness (I guess?) to the CA5 panel, DOJ’s stay motion didn’t directly invoke the Roberts/Rehnquist principle that the government is irreparably harmed whenever one of its policies is blocked by a court order. Instead, DOJ invoked the harms to pregnant women and other members of the public that the panel said don’t count under the irreparable harm prong.
That said, it’s bizarre that the panel could find its way to musing that maybe it could just dispense with the FDA’s stay request because the FDA alleged irreparable harm “merely” to the public. That impulse seems self-evidently wrong, even if the panel didn’t really follow though on it (i.e., it said “we *may* not need to address the merits of the merits of applicants’ stay request any further ...).
Thanks for this very clear and illuminating explanation! I agree with you on how the standing analysis seems to have no limiting principle.
In fairness (I guess?) to the CA5 panel, DOJ’s stay motion didn’t directly invoke the Roberts/Rehnquist principle that the government is irreparably harmed whenever one of its policies is blocked by a court order. Instead, DOJ invoked the harms to pregnant women and other members of the public that the panel said don’t count under the irreparable harm prong.
That said, it’s bizarre that the panel could find its way to musing that maybe it could just dispense with the FDA’s stay request because the FDA alleged irreparable harm “merely” to the public. That impulse seems self-evidently wrong, even if the panel didn’t really follow though on it (i.e., it said “we *may* not need to address the merits of the merits of applicants’ stay request any further ...).
Good write up.
Thank you for breaking this down. It’s so infuriating but at least now I understand it better.