Sometimes I think I should have become a lawyer. Not all that often, thankfully, given that I have no regrets about the educational and career paths that I was led down.
But I find legal arguments fascinating. Aside from scientific arguments, they're one of the best ways we humans have of getting closer to the truth. Not perfect, for sure. Just way better than arguing with each other in an unfettered fashion.
Yesterday morning, I saw that the Washington Post app on my iPhone was featuring audio of the arguments being made before the Supreme Court about whether the abortion drug mifepristone should be banned or availability limited.
I listened while I made my breakfast. I missed the opening arguments, but listened to quite a bit of the second hour of the hearing, which included probing questions from the justices.
As a CNN story says, one of the central issues was whether members of the conservative anti-abortion group hoping to ban or limit the use of mifepristone had standing to bring the case to the Supreme Court.
Standing requires that someone demonstrate that they've suffered a specific harm, not just that they disagree with a certain policy -- in this case, making a drug available that produces an abortion in a pregnant woman.
If I recall correctly, the argument in this case was that because right-wing Ob-Gyn doctors are opposed to abortion, yet support childbirth, providing mifepristone harms the doctors because it reduces the chance of them being able to deliver a child, while increasing the chance that they might have to perform a D&C (dilation and curettage) where scraping of the uterus occurs.
So that rather lame argument rested on probabilities, not actual harm. Maybe, just maybe, one of those right-wing doctors would find themselves in an Emergency Room where a woman was having a medical problem arising from the use of mifepristone.
(The drug isn't only for inducing an abortion. It also is used in miscarriages.)
What I found really strange was how the anti-abortion attorney seeking to convince the Supreme Court to ban or limit mifepristone kept saying that the drug should be banned, because otherwise one of the doctors they represent might be required to provide life-saving medical care to a woman who is in an Emergency Room due to a complication from taking mifepristone.
I kept thinking, "WTF! That's exactly what doctors are supposed to do: treat seriously ill people."
It's bizarre that an argument was being made before the Supreme Court of the United States that even though federal law contains a conscience clause saying that medical personnel aren't required to provide care that goes against their moral code, mifepristone still should be banned nationwide because maybe, just maybe, in an emergency situation a doctor might need to perform a D&C on a woman who had been taking the drug.
Thankfully, the CNN story says that the justices were skeptical of this argument.
Conservative and liberal justices demanded to know why access to mifepristone needed to be limited if the small number of doctors involved could simply exercise their own religious and conscientious objections individually.
...If things seemed to be going badly for the abortion pill challengers as Tuesday’s hearing began to unfold in earnest, their prospects of prevailing appeared to grow even dimmer during the second hour of arguments, when Chief Justice John Roberts and Justice Neil Gorsuch tore into the challengers’ attorney over the nationwide impact caused by the lawsuit.
“Why can’t the court specify that this relief runs to precisely the parties before the court as opposed to looking to the agency in general and saying agency you can’t do this anywhere?” Roberts asked the attorney, Erin Hawley.
As she began to explain how such a remedy would be “impractical,” Gorsuch interjected to speak to the recent spike in universal injunctions. He said he went back “and looked and there are exactly zero universal injunctions that were issued during Franklin Delano Roosevelt’s 12 years in office – pretty consequential ones.”
“And over the last four years or so, the number is something like 60 and maybe more than that,” he continued. “And they’re a relatively new thing. And you’re asking us to extend and pursue this relatively new course, which this court has never adopted itself.”
“This case seems like a prime example of turning what could be a small lawsuit into a nationwide, legislative assembly on an FDA rule or any other government action,” Gorsuch said.
The Biden administration contends that even if some action in favor of the plaintiffs was warranted, it should not have affected the entire country as opposed to just the litigants in the case.
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