Equities Should Have Been Balanced in the 2023 Abortion-Drug Litigation: A Civil Procedure Post
Recently there has a been a flurry of litigation over an abortion drug. A Texas federal judge banned it nationally; a Washington State federal judge unbanned it nationally; the Texas federal appeals court partly undid the ban, and the Supreme Court completely undid the ban. More precisely, the Northern District of Texas issued a preliminary injunction against use of the drug, the Eastern District of Washington issued a preliminary injunction in favor of use of the drug1, the 5th Circuit Court of Appeals stayed part of the Texas preliminary injunction, and the Supreme Court stayed the entire Texas preliminary injunction, with a dissent by Justice Alito.
I’m not going to write about whether the abortion drug should be banned. That is, I’m not going to write about the “merits” of the case.2 Rather, I’m going to talk about what courts should do temporarily while they’re deciding the case. That’s what all the court decisions so far are supposed to be about.
The merits are relevant to deciding what to do temporarily, but they’re not the only thing that’s relevant, or even the main thing. In fact, I will argue here that the pro-abortion party should have won in Texas District Court, lost in the Washington District Court, lost in the 5th Circuit stay request, and lost in the Supreme Court stay request. More simply: every time either party requested a preliminary injunction or stay, they should have lost.
My reasoning is this. When you go to court and ask for temporary relief till a case is decided on the merits, a standard and good test is whether you would suffer more irreparable harm than the other side during the time before a final decision. This is called “balancing the equities”. You, the side requesting the preliminary injunction or stay, have the burden of proof: if you babble instead of balancing, you lose. Every single applicant babbled. So they should all lose.
Applied to the particular issue of the abortion drug, which the anti-abortion side says has not gone through the right safety checks by the FDA, suppose it would take two years for the Court to hear all the evidence from both sides and make its permanent decision. During those two years, what should the law be? If the drug is wrongly banned, some women will have had babies they didn’t want, and giving them money won’t make up for that very well. If the drug is wrongly permitted, some women will suffer harm from a dangerous drug, and giving them money won’t make up for that very well. You can add liberty concerns, harm to babies, and whatever you like to that mix; they wouldn’t alter my point. If the pro-abortion side says that there’s no possible medical harm to the women, or the anti-abortion side says that there’s no loss to a woman having to forego use of the drug, that’s just evading the hard question of balancing. Both losses surely exist; the question is which is bigger.3
We do need to add the probability of success on the merits to this balancing, and the losses to third parties, people who aren’t either of the two parties to the lawsuit— a drug company and a doctors’ organization). It’s straightforward to add third parties’ losses to the balancing, but harder to incorporate the probability of success. If the Court thinks at this preliminary stage, before it’s heard most of the evidence, that the probability each side deserve to win is 50-50, then all that matters is each side’s temporary loss from not getting the law to be the way it likes. If the Court thinks one side probably has a 90% chance of winning, though, that side’s temporary, two-year, loss should be given more weight. That’s the clear rule in the 7th Circuit (Illinois-Indiana-Wisconsin) and some other appeals courts (including that of Washington State), and is perhaps the unclear rule elsewhere (the Supreme Court’s Winter and Nken decisions left the law a mess on what to do).4
So let’s look at the 2023 cases. In the first one, the Texas decision, Judge Matthew Kacsmaryk does not even use the words “balancing the equities”.5 He just talks about irreparable harm to the applicant.6 Thus, the applicant should have lost. That’s the anti-abortion side here.
In the Washington case, Judge Thomas Rice mentions balancing the equities, but doesn’t do anything with it except to say that the winning side makes a weak argument but should win anyway.7 It’s actually funny how little he says about the balancing. I’ll boldface those two sentences where he “discusses” it.
Plaintiffs assert that the equities and public interest weigh strongly in their favor where the public's health is at stake. ECF No. 3 at 36. When the government is a party to a case in which a preliminary injunction is sought, the balance of the equities and public interest factors merge Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). The public's interest in healthcare favors a preliminary injunction where the agency's action likely results in worse health outcomes ." New York v. U.S. Dep't of Homeland Sec., 969 15 F.3d 42, 87 (2d Cir. 2020). Plaintiffs contend the public has an interest in access to safe and effective medicine for those who terminate their pregnancies . ECF No. 3 at 36. Defendants contend the public interest is best served by deferring to FDA's judgments about what restrictions are necessary to ensure drugs are safe." ECF No. 51 at 32. The Court agrees with this general premise,but the allegations inthis case are that FDA made findings (or failed to make findings) that the Court does not defer to, i.e. those contrary to law and those that are arbitrary and capricious. Thus, this argument does not strongly favor Defendants. Based on the public health and administrative considerations at issue in this case, Plaintiffs have shown the balance of the equities sharply tip in their favor and the public interest favors a preliminary injunction.
In the Washington case, there being no showing that the balance of equities favored the applicant, the applicant should have lost. That’s the pro-abortion side here.
The unanimous 5th Circuit opinion by Judges Haynes, Engelhardt, and Oldham is so tangled that I think I’ll give a surface treatment for the moment and return to this post later. it is tangled because they list the Nken Supreme Court 4 factors for granting a stay, which are themselves poorly written, and then lean heavily on particular phrasing. The 5th Circuit quotes the factor from Nken:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured absent a stay;
(3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and
(4) where the public interest lies.
The Nken factors don’t include “balancing the equities” explicitly, just whether there is harm to both sides, so they appear to say a stay should be denied if there was substantial harm to the non-applicant (no mention of “irreparable” for that side!), even if the applicant’s harm would be ten times as big. I doubt that is what was intended. Also, as the 5th Circuit notes, factor (3) asks whether issuance of stay will hurt other interested parties, but factor (2) only asks whether non-issuance would hurt the applicant, leaving the harm to third parties who are on the applicant’s side completely out of the picture. Taking this literally and woodenly makes it easy for the 5th Circuit to deny the stay— though then they end up sustaining part of it, too! If the traditional, coherent, test for a stay had been used, then since there was no showing that the balance of equities favored the applicant, the applicant should have lost, as they only partly did. That’s the pro-abortion side here.
In the Supreme Court stay application, I did look at the brief for the application for the stay, the response brief arguing against the stay, and the reply brief arguing for the stay. Both sides pretend the other side has no irreparable harm. Poppycock! Both sides obviously do have irreparable harm. So they should be arguing that their side has the bigger loss. Since they don’t, the applicant should have lost. The Court ruled at least 5 to 4, however, to grant the stay. The decision was without an opinion, so we don’t know whether the vote was 5 to 4, 6 to 3, or 7 to 2, but Justices Thomas and Alito announced that they would have denied the stay, and Justice Alito wrote a dissent. Alito’s dissent made two points. One was that the 5th Circuit was going to hold oral argument in just 26 days anyway, and the applicant wouldn’t suffer irreparable harm over that short a time period. The other was that the FDA was gaming the system, and equitable remedies such as preliminary injunctions and stays shouldn’t be given to parties who try to game the system:
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).
But Thomas and Alito were outvoted. The stay should have been denied, if for no other reason than that the applicant did not try to balance the equities, but it was granted anyway. Here the pro-abortion side won.
Thus, every one of these five decisions was flawed, even the 5th Circuit decision that partly denied equitable relief.
That is mostly what I wish to say, but I’d like to address one other point. The applicant for a stay or preliminary injunction has the burden of proof. If he just says the other side has no irreparable loss, that’s fine if it’s true. If it’s obviously false, as in these cases, what I have been saying is that the Court should say, “Don’t be stupid and lazy; since your claim that your opponent’s irreparable loss is zero is obviously false, we are rejecting your application, even though we might have granted it if you’d just explained why your loss is bigger than his.”
You might quarrel with me on this. Suppose one side of a lawsuit has poor lawyers and argues badly, neglecting to address a crucial point and thus not carrying its burden of proof. In the interest of justice, should the judge address that point himself? (“sua sponte”) The judge could carry the failed litigant over the finish line, and it would reach the right result.
This comes up in various contexts. I was foreman of a downtown Los Angeles jury when I was about 28 (I was a professor and a man, so my elders on the panel thought I could lead discussions well). We hung, unable to agree on a verdict, in the drug possession case that was being tried. The problem was that neither side had addressed whether at the particular time of day and distance a policeman would really be able to see the small bag of crack cocaine in the defendant’s hand. And jurors aren’t allowed to ask questions (a bad rule).8
Another context is amicus briefs. The most important use of friend-of-the-court briefs is probably when one side has bad lawyers. Another important use is when both sides have good lawyers, but there’s something they want the Court to remain ignorant of. There was a tax case at the 5th Circuit (one of the several Marshall cases involving the billionaire who married a model 63 years younger than himself), and since I’d heavily criticized the Internal Revenue Service9, the taxpayer called me up to see I’d write an amicus brief for their side. After reading the trial court decision, I decided to write an amicus brief supporting the other side, the IRS. My argument, however, was different from what the IRS was saying. They made a power-grab argument that was unsound and would have made for a bad precedent, even though it led to the correct result in this particular case. Neither side wanted to make my economics-based argument, the correct one.10
And sometimes it is the judge who sua sponte ought to decide something that goes against the wishes of both parties to the suit. This happened when I sued Citigroup on behalf of New York State for not paying some hundreds of millions of dollars of state income tax because of net operating loss carryforward they were wrongly deducting in 2009. My law firm, Buffalo's Hodgson-Russ, filed in New York state court, because it was state taxes, not federal.11 We would have preferred federal court, because the case was complex and federal judges are smarter, especially in New York City, but although federal tax law was part of the case since New York tax law interacts with it, we couldn’t really justify going to federal court. We were delighted, however, when Citigroup’s lawyers, Jones-Day, filed to remove the case to federal court. It seemed against their interest, but I suppose since Jones-Day is a prestigious BigLaw firm it mostly practices in federal courts and felt more comfortable there, or feared that state politics might go against Citigroup in state court. So the case was removed. Federal judge Lewis Kaplan took over a year thinking about the motion to dismiss. In the end, he didn’t decide it: he kicked it back to state court. In his ruling, he rather peevishly hinted that I ought to lose, without saying why, but said, sua sponte and correctly, that the case was about state taxes and belonged in state court.12 This is a good case for sua sponte, because both parties were trying to misuse the Court's time for a case that really belonged in a different court.
In the abortion drug litigation, however, a Court should not rule sua sponte on balancing the equities. The Court should not do the lawyer’s work for him when he has been grossly negligent by omitting an obvious issue that should have been addressed in his brief. Maybe the Court should help a pro se party, one who doesn’t have a lawyer and is arguing the case himself, but not a member of the bar. Both sides are negligent in not taking balancing the equities seriously in their briefs, but only one side has the burden of proof on this: the applicant. So whoever is applying for a preliminary injunction or a stay should have lost all these abortion drug motions.
This is a very common problem in American law. The law says to balance the equities, and it’s frustrating that lawyers and judges keep repeating how they’re supposed to balance the equities, and then they usually don’t even try. What can be done? Suggestions welcomed.
[I wrote Part II the next week. It focusses on the exact way the 4-part test should be carried out using the sliding scale for balancing the equities.]
Washington v. FDA, No. 1:23-cv-03026-TOR (E.D. Wash. Apr. 7, 2023).
Even before getting to the merits, a crucial issue in this case is whether the doctor organization has “standing”: that is, whether they have enough of a direct interest to be allowed to sue the Food and Drug Adminstration. Probably they don’t, but I haven’t thought much about that. Probably, too, the doctor organization is right on the merits, even if they shouldn’t be allowed to be the ones to do the suing.
A complication is that neither of these injuries— to women who would have a harder time aborting, and to women who would use a possibly-dangerous drug— are parties in any of the cases. They certainly ought to be considerations, however. This is related to the standing question of footnote 2.
If you’d like to read more about the law on this, I have a 2022 Substack on it, “An Amicus Brief on Preliminary Injunctions, in the Context of the Abortion Case at the Indiana Supreme Court, with the Story of Its Writing,” and an amicus brief submitted to and accepted by the Indiana Supreme Court (it’s a case about state law, not federal law).
Gentle reader, try searching “balanc” in his opinion; I came up with nothing.
I did not check the applicants’ brief in the Texas, Washington, and 5th Circuit cases, only in the Supreme Court case, but I doubt the applicants balanced the equities, since the Courts don’t.
Judge Rice was good on this point: “The Court agrees with this general premise,but the allegations in this case are that FDA made findings (or failed to make findings) that the Court does not defer to, i.e. those contrary to law and those that are arbitrary and capricious.”
We were allowed to see the little clear plastic baggie with the cocaine inside, with the bailiff looking on intently to make sure none of us stole it.
J. Mark Ramseyer & Eric Rasmusen, "Can the Treasury Exempt Companies It Owns from Taxes? The $45 Billion General Motors Loss Carryforward Rule," The Cato Papers on Public Policy, Vol. I, Article 1, pp. 1-54 (2011) edited by Jeffrey Miron, http://www.cato.org/store/books/cato-papers-public-policy-paperback. After the government joined private parties in purchasing most of General Motors’s property, the Secretary of the Treasury issued “the EESA Notices” which said that the usual tax rules would not apply and the purchasers could deduct $45 billion from their future corporate income, a tax asset worth an estimated $16 billion. The notice gave no justification for the exception, except that the TARP act gives the Secretary authority to do what is “necessary or appropriate to carry out the purposes of EESA.” This paper argues that there is no legal or economic justification for the EESA Notices, even aside from the issue of whether the government should have bought the GM property. The scant notice paid to the large wealth transfer of the EESA Notices shows the danger of allowing this kind of tax ruling, especially in comparison to the widespread criticism of the government purchase itself, an action which may well have a much smaller cost given that the government’s previous loans to GM were already sunk.
Alas, the Court went with the IRS’s power grab, so there is a bad precedent now in the 5th Circuit.
Hodgson-Russ is an interesting law firm. Founded in 1817, it has two Presidents as past attorneys— Millard Fillmore and Grover Cleveland— and it owns Louis Sullivan’s famous 1896 Guaranty Building.
Since the federal judge was so peevish and took so long, when he could have written the opinion ten minutes after reading the briefs, here’s my theory. The judge tried for many months to delve into the necessary intricacies of Delaware and federal corporate law, federal and New York tax law, and New York whistleblower law to show why Rasmusen should lose, since it seemed crazy that the IRS would give away billions in tax breaks to Citigroup and unfair that Rasmusen should receive hundreds of millions for himself just for winning this lawsuit. But he just couldn’t find a way to rule against Rasmusen on the merits in Citigroup’s motion to dismiss without risking looking like a fool for making a mistake in one of these areas of law. Tax law is intricate, but unlike constitutional law, it does have objectively right and wrong answers. Finally, he realized he could kick it back to state court and let them worry about it.