Last week I wrote about the Fifth Circuit’s decision in United States v. Rahimi, on remand from the Supreme Court. The panel explained that the Supreme Court “modified” Bruen. Though the Supreme Court reversed the Fifth Circuit, in candor, the Fifth Circuit should not be faulted for faithfully applying the precedent that existed at the time.
Yesterday, the Fifth Circuit decided another case on remand from the Supreme Court: Alliance for Hippocratic Medicine v. FDA. The panel remanded the case back to the district court. I know this is another case that is scored as a reversal for the Fifth Circuit. But here the Solicitor General altered the government’s position, so the Supreme Court resolved a different dispute than the one faced by the Fifth Circuit. Specifically, SG Prelogar made very specific representations in AHM, as well as in Moyle that federal conscience law would protect doctors. And with those concessions, the Court unanimously reversed. I wrote about Prelogar’s switch in time that saved nine here.
Judge Ho wrote a concurrence which explained, in some detail, how the case changed on appeal.
First, Ho explained that the Fifth Circuit faithfully applied Supreme Court precedent to the case, as it existed at the time:
That’s exactly what happened here. Both the district court and this court applied governing Court precedent to determine whether Plaintiffs have standing to bring this suit. We all agreed that they do. No member of this court disagreed—not on the motions panel, the merits panel, or the en banc court.
Second, Ho demonstrates that the Court’s decision was premised on the Solicitor General’s flipped position:
The Court reversed, but only because, “as the Government explains, federal conscience laws definitively protect doctors from being required to perform abortions or to provide other treatment that violates their consciences.” Id. (emphasis added). There’s a simple reason why our court—unlike the Supreme Court— was uncomfortable trusting federal conscience laws to protect doctors: The Government has taken precisely the opposite position on federal conscience laws in other cases and in other courts—including ours.
In the Fifth Circuit, and other courts, the government vigorously argued that conscience laws would not exempt doctors from offering abortion care:
In our court, the Government insisted that federal law “requires doctors to offer abortion care to individuals when that care is necessary stabilizing treatment for an emergency medical condition.” Brief for Appellants, Texas v. Becerra, 2023 WL 3345254, *25 (5th Cir. 2023) (emphasis added). “When pregnant women come to a Medicare-funded hospital with an emergency medical condition, EMTALA obligates the treating physician to provide stabilizing treatment, including abortion care.” Id. at *27 (emphasis added). “[P]ermitting physicians to refuse to provide care that they deemed ‘medically or ethically inappropriate’ directly conflicted with EMTALA’s stabilization requirement.” Id. at *26 (citing In re Baby K, 16 F.3d 590, 597 (4th Cir. 1994)).
But before the Supreme Court, SG Prelogar did a 180.
But the Government switched positions before the Supreme Court. It “disclaimed that reading of EMTALA.” Alliance, 602 U.S. at 389 (emphasis added). It now believes that “EMTALA does not ‘override an individual’s doctor’s conscience objections.'” Id. (emphasis added). It now agrees that “‘[h]ospitals must accommodate doctors'” who have “conscience objections.” Id. Moreover, a representation by the Solicitor General to the Supreme Court carries greater weight than a statement by Government counsel before the inferior courts.
You cannot fault a lower court for relying on the argument the government presented. The Fifth Circuit cannot anticipate how the Biden Administration would try to salvage the case before the Supreme Court. All of these lists of reversal rates truly fail to consider how the Fifth Circuit is treated on appeal.
Third, Judge Ho explains that the government also reversed its position in Moyle (which I discussed here):
So the Court reversed because the Government reversed.[FN1]
[FN1] The Government also reversed itself in Moyle v. United States, 603 U.S. _ (2024). In the district court, the Government insisted that EMTALA “requires a physician to offer an abortion.” Reply Memorandum in Support of Motion for a Preliminary Injunction at 6, United States v. Idaho, 623 F. Supp. 3d 1096 (D. Idaho 2022) (No: 1:22-cv-00329). But the Government again switched positions before the Supreme Court. See Brief for the Respondent, Moyle v. United States, 2024 WL 1298046, *17 (2024) (“EMTALA’s stabilization obligation is imposed on ‘hospitals,’ not on ‘individual providers'”) (quotations omitted).
Fourth, there is another ground to criticize the majority opinion. The Court failed to consider one theory of standing on which Judge Ho relied: aesthetic injury standing.
Unborn babies are a source of profound joy for those who view them. Expectant parents eagerly share ultrasound photos with loved ones. Friends and family cheer at the sight of an unborn child. Doctors delight in working with their unborn patients—and experience an aesthetic injury when they are aborted.
This argument truly made people lose their minds. But it was an argument in favor of jurisdiction, and it was grounded in fairly well-established environmental law.
Judge Ho explains that the AHM Court favorably cited several decisions about aesthetic injury in the context of environment law, but ignored the aesthetic injury argument.
Second, the Court also reaffirmed its longstanding directive to inferior courts to address novel questions of standing by analogizing the Court’s precedents in other areas of the law—including environmental law.
Before the Court dismisses a case for lack of jurisdiction, it has the responsibility to at least consider all the grounds for standing expressed below. And this argument was simply ignored by Justice Kavanaugh’s majority opinion, and Justice Thomas as well.
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I know it is en vogue to criticize Judge Ho–I’ve lost count of the number of “profiles” about him by the media. But Judge Ho is one of the few members of the federal judiciary who is willing to point out where the Supreme Court errs. It is true he is an inferior court judge, but inferiority does not demand subordination. Lower court judges can, and should, identify Supreme Court precedents that have been eroded by more recent decisions. Lower court judges can, and should, identify where the Supreme Court has quietly eroded its own decisions. And lower court judges can, and should, point out when the Supreme Court failed to consider all of the claims that were properly presented, including jurisdictional arguments. These three responsibilities are especially apt when the Supreme Court purports to reverse a lower court, which in fact faithfully applied precedent as it existed at the time.
We’re still not quite done with remands. Let’s see what the Fifth Circuit panel does on remand in NetChoice v. Paxton. The Supreme Court’s “facial” analysis in that decision left much to be desired.
