UNBIASED - DEEP DIVE: The Mifepristone/Abortion Pill Case, Concerns from Justices, and Jordan's Ruling Prediction. PLUS Sam Bankman-Fried Sentenced and Good News of the Week.

Episode Date: March 29, 2024

1. Sam Bankman-Fried Sentenced to 25 Years. Here's How That Stacks Up to Other Sentences and Why He'll Likely Get Out Early (2:02)2. Intro to FDA and Danco Labs v. Alliance for Hippocratic Medicine (4:54)3. Background of the Case (7:35)4. Questions for the Court/Arguments from Each Party (11:27)5. FDA/Danco Labs Oral Arguments & Concerns from Justices (18:11)6. Alliance for Hippocratic Medicine Oral Arguments & Concerns from Justices (28:34)7. Jordan's Ruling Prediction (35:52)8. NOT EVERYTHING IS BAD: Good News of the Week (36:41)If you enjoyed this episode, please leave me a review and share it with those you know that also appreciate unbiased news!Use this link to register for LEXSummit and use code JORDANISMYLAWYER for 15% off your already discounted ticket!ENTER REFERRAL CONTEST HERE. (Chance to win $200! Contest ends 3/31/24 at 11:59pm ET). Watch this episode on YouTube. Follow Jordan on Instagram and TikTok. All sources for this episode can be found here.  Learn more about your ad choices. Visit podcastchoices.com/adchoices

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call the Conax Ontario helpline at 1-866-531-2600. BetMGM operates pursuant to an operating agreement with iGaming Ontario. Welcome back to Unbiased, your favorite source of unbiased news and legal analysis. Welcome back to Unbiased. Today is Friday, March 29th, 2024, and we are deep diving into FDA and Danko Labs versus Alliance for Hippocratic Medicine, better known as the abortion pill case, the Mifepristone case. But we are first going to briefly talk through Sam Bankman Freed's sentencing yesterday, because I did have a few of you reach out to me wanting to talk about that. And then we will finish today's episode with not everything is bad because today's Friday. And that is my good news segment to leave you feeling just a little bit lighter going into the weekend, leave you with,

you know, some good news. Before we get into today's stories though, I want to take a minute to tell you about an upcoming summit I'm speaking at, which I am so incredibly excited about. Lex Summit in Salt Lake City is a multi-day conference for legal professionals to learn from some of the brightest legal minds in the industry. And I highly encourage all of my listeners in the legal profession to consider attending this. At Lex Summit, you will immerse yourself in cutting edge AI solutions that are tailored to your firm

so that you return to work after the summit and you are ready to take your practice to the absolute next level. And perhaps the best part of this is that you can actually earn CLE credits while you're there. So I have a specialized link for you in this episode description. Use code JORDANISMYLAWYER, all one word at checkout.

You will get an additional 15% off the already early bird pricing. This will save you over $400 off your ticket. Again, that's code JIsMyLawyer, all one word, for 15% off the already discounted Lex Summit ticket. Use the link in this episode description to learn more. You are not going to want to miss it. Now, without further ado, let's get into today's stories. Yesterday, Sam Bankman-Fried, otherwise known as SBF or Bankman-Fried, was sentenced to 25 years in prison for defrauding customers and investors

in the crypto exchange FTX. He defrauded customers and investors out of nearly $8 billion. So prosecutors had asked the judge for anywhere from 40 to 50 years, whereas Bankman-Fried's defense lawyers had asked for six and a half. They argued that 40 to 50 years is, quote, a death in prison sentencing recommendation, and that six and a half years is more appropriate for a nonviolent first-time offender. When a judge sentences someone, they do look at the sentencing guidelines, but they also weigh a variety of factors. So in this case, under the federal sentencing guidelines, SPF was spacing over 100 years. But Judge Kaplan had said that he did not intend to hand down the maximum sentence

in this case, and he did seem to weigh SPF's age, his mental state, including his autism diagnosis, his social awkwardness as well. However, the judge also made mention of SBF's perjury at trial, his, quote, evasive hair-splitting testimony, as well as the fact that SBF knew what he was doing was wrong, and he was always sort of calculating the probability of getting away with his crimes. So all of this weighed into the judge's decision. Ultimately, the judge felt 25 years plus three years of supervised release and an $11 billion forfeiture, which will consist of his assets, was fair. So how does SBF's sentence stack up to other similar defendants? Well, we all know Bernie Madoff, right? He committed the largest financial

fraud in history at around $20 billion, so more than double SBFs. He was sentenced to 150 years. Elizabeth Holmes, founder and CEO of Theranos, she defrauded investors out of hundreds of millions, not quite in the billions. She was sentenced to a little over 11 years. And then Holmes' partner in crime, Sonny Balwani, he was sentenced to a little under 13. So SBF falls somewhere, you know, just, I was going to say the middle, but it's not the middle, somewhere just above Holmes and Balwani, but obviously not to the extent of Madoff's sentence. Now, despite his 25 year sentence, he likely won't serve the whole thing. So even though there's no possibility of parole when it comes to federal criminal cases, he can still get out in less time

with good behavior, right? So generally how it works is federal prisoners can earn up to 54 days of time credit per year of their sentence for good behavior. And SPF, he's not really a bad acting guy. I mean, yes, he committed terrible crimes, but he, as far as his personality goes, he's always kind of kept to himself. He's really quiet, you know, so I'd imagine the good behavior works in his favor. With all of that said, though, SPF does plan to appeal both his conviction and his sentence. Okay, so now let's deep dive into FDA and Danko Labs versus Alliance for Hippocratic Medicine. I briefly discussed these two cases on Tuesday. Many of you requested that it be featured as the deep dive, so that's what we're going

to do. For the sake of not being too repetitive, but also getting everyone caught up to speed as, you know, if this is your first time hearing about these cases, I want to catch you up, but I also don't want to repeat too much. So what I'll do is I'll touch on the same points that I spoke of on Tuesday, but I'll include a lot more information and detail this time around. There are two cases here, as I've said, FDA versus Alliance for Hippocratic Medicine, and then Danko Labs versus Alliance for Hippocratic Medicine. They both deal with the same overarching issue, which is the legality of and the accessibility to

an abortion medication known as mifepristone. So who are the parties? Well, the FDA is obviously the agency that approved mifepristone for use in the first place, but the FDA also regulates how the drug is used. It makes updates to the protocol, all of those things. Danko Labs is the manufacturer of mifepristone. And then Alliance for Hippocratic Medicine is this organization that represents healthcare professionals, but doctors specifically in this lawsuit, who are suing the FDA. A little more specifically, the Alliance is this advocacy organization based in Texas that is very much against abortion. So doctors who have taken the Hippocratic Oath can join this alliance as a member. They basically just abide by the missions and the values of the alliance. They attend events through the alliance,

they make financial contributions, etc. Some of the alliance's stated values include the following, just to kind of familiarize you with what this alliance stands for. Sanctity of life, which is defined as beginning at fertilization and ending at natural death. Sanctity of the body, asserting no difference between biological sex and gender, except in cases of rare diagnosable disorders of sexual development. The importance of passing on our medical knowledge and expertise to those who follow and are like-minded, the importance of passing on our medical knowledge and expertise to those who follow and are like-minded, the importance of seeking what's best for the patient, the importance of seeking what's best for the patient, the avoidance of intentional harm,

and the ability of a healthcare professional to practice what is best for their patient according to the professional's best medical judgment. So again, doctors and healthcare professionals who agree with the Alliance's mission and values can become a member, and it's some of those doctors that sued the FDA here. Back in 2000, the FDA approved this abortion medication known as mifepristone. Mifepristone is the generic name for the drug. It's also known as Mifeprex, but it's essentially one of two drugs in a two-drug protocol that allows a woman to end her pregnancy. So she takes the Mifepristone first, then a second drug called Mizoprostol. And when Mifepristone was initially approved, the FDA had imposed a variety of conditions on how it could be prescribed and

used. So it had to be prescribed by a doctor in person in the doctor's office, and it could only be used through the seventh week of pregnancy. In total, a woman would make three trips to the doctor, one to take mifepristone, the second two days later to take that second drug, and then a third visit two weeks after that to confirm that her pregnancy had been terminated. 16 years later, in 2016, the FDA made some changes. First, it allowed mifepristone to be used through the 10th week of pregnancy rather than the 7th. Second, only one in-person visit to the doctor was required rather than three. Third, non-physician healthcare providers can now prescribe the drug. And fourth, there was no longer this FDA-imposed requirement

for prescribers to report adverse effects from the drug that either led to hospitalization or blood transfusion. So it only maintained a reporting requirement for what it called significant adverse effects. Five years after that, in 2021, the FDA issued the most recent change, which did away with the in-person dispensing requirement. So now the drug could be prescribed through telehealth, it could be sent through the mail. And the following year, in 2022, several doctors sue the FDA through this alliance, challenging not only the 2016 and 2021 changes, but also the original approval of mifepristone back in 2000. And their accusations were that the drug isn't safe, the FDA didn't accurately assess the risks

associated with the drug, the drug should have never been approved in the first place, and it should be taken off the shelves. They brought the lawsuit in Texas, and the district court sided with the doctors. The judge found that the FDA had approved mifepristone despite what it called, quote, legitimate safety concerns. And essentially, the court held that the original approval of the drug, and therefore the subsequent changes in 2016 and 2021, were completely void. The FDA then appeals this decision to the Fifth Circuit. And on appeal, the appellate court agreed with the district court in part, but also disagreed with the district court. So for one, the appellate court ruled that it was

too late for the doctors to challenge the initial approval of the drug back in 2000. Therefore, the initial approval stands. However, the appellate court did agree as to the dissolution of the more recent changes. So per the appellate decision, the drug approval remains intact, but the changes in 2016 and 2021 were rolled back. This effectively reinstated the 2000 conditions on the medication, meaning it could only be taken through seven weeks of pregnancy, it couldn't be mailed, and it had to be prescribed in person. So naturally, the FDA takes this to the Supreme Court. And this time, Danko Labs gets involved too, because Danko was like, hey, if you go ahead and roll back the accessibility of the drug, we don't make as much money, and we now have a vested interest in this case. And they didn't

really explicitly say like money was the problem, but that's obviously their interest here. So here we are at the Supreme Court. Now, in Tuesday's episode, I said there were two main questions for the court. One, do the doctors by and through this alliance even have legal standing to bring this challenge? And two, whether the appellate court was correct in upholding the district court's ruling as to the 2016 and 2021 changes. But let's go a little bit deeper into those questions. We're going to talk a lot about standing because that's one of the biggest issues in this case, but something I want to clear up as it pertains to the second question is that the Supreme Court is not considering the original FDA approval in 2000. The merits of this

appeal only deal with the changes made in 2016 and 2021, so the original approval stands. As we've talked about before, standing is someone's legal ability to sue. To have standing and therefore bring a lawsuit, you have to have an actual injury or at least a threatened injury, which is traceable to the challenged conduct, and the injury has to be redressable or fixable by a ruling from the court. So if we apply that definition to this case, the alliance has to be able to show that the doctors, at least one doctor, has suffered an injury or is imminently threatened with an injury, which is traceable to the FDA's changes to the Mifepristone protocol, and that their alleged injury can be remedied by the court

in some way. Now, I'm just going to say from the get-go that the full scope of standing can be very complicated. This is a concept that you spend days and weeks on in law school, so I'm really going to do my best to sort of simplify it for this conversation. But the reason standing is so important to talk about here is because if a party is found to not have standing, the lawsuit gets thrown out, completely tossed. The court won't even get to the merits of the case. Every decision below gets tossed.

Everything goes back to the way it was before this lawsuit was even filed. So keep that in mind as we move forward, because standing, a lot of the justices had an issue with standing here. Based on that definition of standing that I just gave you, what the alliance argues is that it does have standing, and it can bring this lawsuit, because the doctors within the alliance are in imminent danger of having to treat a woman suffering complications of mifepristone and such treatment goes against his or her conscience. They argue that based on the data and history, the doctors have a substantial likelihood of being injured in the future. And because of the FDA's recent changes, i.e. sending the drug by mail and doing away with in-person office visits, emergency room doctors are now

relied on by the FDA to treat complications of the abortion drugs. Therefore, the FDA's challenged actions are traceable to the doctor's injuries. And then for the last component, the redressability component, the doctors say that if the court rolls back the 2016 and 2021 changes, they will be made whole because they'll no longer have this increased risk of having to treat complications of mifepristone because ultimately their argument is that the changes increased their risk of having to treat complications. The FDA and Danko, on the other hand, argue the doctors can't prove standing. They say not only have the doctors not shown an actual injury, but rather a speculative injury, which just isn't enough to prove standing, but also the doctors can't show traceability. In other words, the FDA argues that the approval of the drug simply allowed the drug to be

distributed subject to certain conditions, and the subsequent changes allowed the drug to be distributed subject to certain conditions, but the FDA never required healthcare providers to prescribe the drug. It never required patients to take the drug. So the FDA says that if a woman takes the medication and experiences an adverse event requiring medical treatment, nothing requires that patient to seek treatment from members of the alliance or requires members of the alliance to provide treatment. And finally, as far as the redressability component goes, the FDA and Danko argue that

the doctors can already, under federal law, set forth a conscience objection. Federal law allows doctors to decline care in cases that they have a conscience objection to. So to the FDA and DENCO, the remedy that the doctors are seeking is way overbroad. It affects way too many people, and it would just be sort of an improper remedy for this court to provide. Important to this case and the concept of standing is a Supreme Court case called Clapper from 2012. It was a 5-4 decision, and what the court held is that it is not enough for there to be just a reasonable likelihood of future injury. If a party can't prove an actual injury and only asserts a possible future injury, the party must show that the possible future injury is, quote, certainly impending. And in that case, if they can show that, the injury will be sufficient for standing.

So because of this, the alliance argues that the data that shows between 2% to 5% of women end up in the emergency room after taking mifepristone, which is a higher number than before the recent FDA changes. This shows that doctors will certainly face a woman in the future whom they have to treat despite objection. The government, on the other hand, says this is too speculative. It says only a small percentage of women suffer complications which require emergency treatment. It's speculative that any of those women would seek care from the specific doctors that have asserted conscience injuries.

And even if that happened, federal conscience protections guard against any potential injury. So the reason I'm spending so much time explaining standing is because it's obviously very important, but also, as I said, at oral arguments, a decent number of justices really expressed concern with it. And we'll talk about this more as we move through the oral arguments, but Justices Alito Sotomayor, Barrett, Thomas, Kagan, and Chief Justice Roberts all pressed the attorney for the alliance on standing. Each of those justices at some point expressed that they did not feel the alliance could

sufficiently allege standing, whether it was due to the injury component, the traceability component, or the redressability component. And so again, we'll touch on that more in a minute, but just know that if at least five justices don't find standing here, the case is done and everything goes back to the way it was before the lawsuit was ever filed. So the government argued first, and the attorney who argues on behalf of the government is Solicitor General Preligar. And the argument, again, really focused on the lack of standing. But if the case got to the merits, the argument was that the FDA's actions were lawful in making the recent changes,

and that the remedy requested from the doctors is overbroad. And the potential for injury that exists if that remedy is granted is not only great on the agency, if courts were able to start overseeing agency determinations, but also on the millions of women that take the drug. So Prelogar said that the FDA rightfully approved Mifepristone. It relied on dozens of studies in doing so. Millions of women have taken the drug safely. And while the doctors and the alliance may not agree with that, may not agree with the medication, it doesn't give them standing or the legal basis to upend this regulatory scheme. And keep in mind, with oral arguments, each party gives an opening statement of sorts, and then the rest of the 40 minutes or so with that particular party just consists of questions from the justices. So that was Preligar's opening statement.

Justice Thomas opened up questioning by asking Preligar who would have standing here. So he said, if the alliance doesn't have standing, who does? And Preligar said it was hard to say. She couldn't really come up with anyone. And this triggered Chief Justice Roberts to ask, so what you're saying is that if the FDA flagrantly violated the law, hypothetically, too bad. There's just no remedy for that. No one could challenge it. And Pellegar responded that if the FDA actually made a mistake and there were actual safety violations, this would be a different story and the drug sponsors would handle it accordingly. But here, she said, we're looking at the respondents directly,

the alliance and the doctors, and saying that they don't come within 100 miles of Article 3 standing requirements. Justice Alito then turned the focus to the most recent 2021 change. He cited to data which shows that the mail order prescriptions result in more frequent trips to the emergency room. And the FDA at one point responded to that claim and said, quote, although literature suggests that there may be more frequent emergency room visits related to the use of mifepristone when dispensed by mail from the clinic, there are no apparent increases in other serious adverse events related to mifepristone. End quote. And Alito followed this up with, does this really count as a reasoned explanation? An increased rate of emergency

room visits doesn't even merit some comment. And Prelogar responded that it is a reasoned explanation from the FDA because what the FDA was saying here is that some studies reporting more emergency room visits doesn't equate to more adverse events. And to explain in more detail, she said, one study showed half of the women who went to the emergency room didn't get any treatment at all. Other women just went for bleeding, which is a symptom of a miscarriage, but they went to make sure that they weren't experiencing a complication. And in this case, if there's no complication, that woman wouldn't be experiencing a serious adverse event from mifepristone, so it wouldn't call into question the safety determinations. And so she said for that reason, the FDA's response was reasonable.

Justice Sotomayor said that the FDA's response to the data concerned her as well. But then she sort of threw a softball to Preligar and asked her to confirm that whether an emergency room visit rises to the level of a serious adverse event is up to the FDA to decide and no one else, which Preligar obviously confirmed it's up to the FDA. Justice Kavanaugh also threw Preligar a bit of a softball, asked her to confirm that under federal law, no doctors can be forced against their conscience to perform or assist in an abortion. Preligar confirmed, saying federal conscience protections provide broad coverage in these situations. Justice Jackson was the third justice to throw

Preligar a softball. She brought up the idea that the injuries that are being alleged by the alliance don't match the remedy sought. In other words, she said, with a conscience injury, you would think that the appropriate remedy would be an exemption for those particular doctors, not an all-out ban for everyone. And this is an idea that Justices Gorsuch and Alito, as well as Chief Justice Roberts, all joined in on as well. Justices Alito and Thomas brought up the Comstock Act. Now, the Comstock Act is an 1873 law that made it a federal crime to send obscene and lewd materials through the mail, with contraceptives being one of the prohibited items. Since then, the law has been narrowed, but it still contains a provision which says that every article or thing which is designed, adapted, or intended for producing abortion is non-mailable. Obviously, when Roe v. Wade was in place, you know, and we've had some other contraceptive precedents, this law wasn't an issue, but then Roe was overturned, and the

Comstock Act became potentially enforceable once again, but it's not clear whether it would be. The Biden administration released a memo following that 2022 Dobbs decision arguing against enforcement of the Comstock Act, but no matter related to the Comstock Act has been brought before the Supreme Court since the Dobbs decision. So that's why Thomas and Alito are asking about it and asking how it would apply in this case. Now, the thing is, the FDA isn't concerned about the Comstock Act because they're not the ones mailing the drug. So because of that, when Prelogar was asked about it, she said only safety and efficacy concerns should be considered when debating restrictions. And she said the

Comstock Act wouldn't have been factored into the FDA's decision to approve or update the protocol for mifepristone. Justice Kagan brought up the conscience objections and asked Prelogar what kind of conscience objection that Prelogar felt was being made in the doctor's declarations. So Kagan asked, do you feel the doctors are making a broader objection to treating any complication of mifepristone, or is it a more narrower objection to specifically having to provide abortions to women who suffer complications from mifepristone? And obviously the difference there is that maybe the woman's pregnancy terminates, the fetus is no longer living, the woman experiences some sort of complication that needs treatment versus if a

doctor has to actually abort a living fetus due to complications. And Prelogar said that the declarations are relatively short, but only two of the seven doctors involved in this lawsuit provide evidence of their specific conscience objections, and they both object to carrying out an abortion specifically. And Kagan asked, so as you understand it, they do not object to providing care as necessary to a woman who experiences a complication and might need a blood transfusion or something. It's just an objection to an abortion specifically, to which Preligar confirmed, but said even still, if it were a broader objection as a matter of law, they can't prove more than a mere speculative injury because of all of the upstream things that have to happen for a doctor to find themselves in that position and also the federal protections that are specifically designed to cover the range of objections that would exist in this context. And finally, Justice Barrett inquired into the data

that shows more adverse effects as a result of the 2021 change, which did away with in-person visits and allowed mail order scripts. And Prelogar reiterated that the FDA determined there were no increased risks, and it's up to the FDA to make those decisions, or make those determinations. So while these other studies may have shown that, the FDA did not find that, and that's within the FDA's wheelhouse. Justice Barrett also seemed a little concerned that neither ultrasounds nor detection of a fetal heartbeat were required before prescribing the drug.

But Prologar said that this has been the case ever since the drug was first approved in 2000. The FDA has always left prescriptions up to the doctor's discretion. Then it was Danko's turn to argue, and this was much shorter, didn't take up nearly as much time. Again, Danko's just arguing that the alliance and the doctors lack standing. The 2016 and 2021 changes by the FDA were permissible. Justice Thomas opened questions again, asking about the Comstock Act. Thomas said he understands the government's argument that it wouldn't be susceptible to a Comstock problem, but he said in your case, you would be. How do you respond to an argument that mailing your product and advertising it

wouldn't violate the Comstock Act. He said, you know, I understand what the government's saying here, but you're private and the statute doesn't have a safe harbor provision. It's fairly broad and it specifically covers drugs such as mifepristone. The attorney disagreed with Thomas's interpretation of the statute. She said the Comstock Act hasn't been enforced in nearly 100 years, and this case doesn't present the opportunity for the court to opine on the reach of the statute. Justice Alito brought up one of the Solicitor General's arguments, which was that a court has never second-guessed an agency's determination of the safetiness of a drug,

and therefore courts shouldn't start now. And what Alito asked the attorney for Danko is, he said, do you think the FDA is infallible? And the attorney responded, no. And Alito said, do you think the FDA should have continued the reporting of non-fatal consequences? And the attorney for Danko said, they decided to remove the requirement based on 15 years of a well-established safety profile. And Alito had a few more pressing questions, but then Justice Jackson sort of followed up Alito's questions with a softball saying,

you were asked if the agency is infallible, but do you think courts have specialized scientific knowledge about pharmaceuticals to issue a ruling on such an issue? Do you have concerns about the courts getting involved here? And obviously, the attorney for Danko answered yes. And then finally, the alliance argued. And again, the alliance's argument is that standing does exist here, that the FDA failed to comply with basic federal law requirements in 2021 when it eliminated the initial in-person visit, as well as in 2016 when it failed to consider the cumulative effects of its removal of certain safeguards. So Justice Jackson asked

about remedy. She said it makes perfect sense for the doctors to seek an exemption. But from what I understand, they already have that under federal law. So now they're asking for everyone to be barred from prescribing mifepristone, but why isn't that plainly overbroad? And Justice Jackson specifically asked about prescribing, but we're also talking about treating as well. So the attorney argued that in practice, doctors aren't able to object for two reasons. And she starts to talk about the emergency nature of procedures and starts to give this hypothetical, but Justice Jackson cuts her off and says, I don't want to discuss hypotheticals. Can you point me to where a doctor explicitly states that they attempted to object and they weren't able to? Again, the attorney said,

no, I can't because of the emergency nature. Doctors rarely know what they're getting themselves into. And when they scrub in and they go into an emergency room, they don't know what they're walking into. So they don't really have the time to object. Justice Jackson asked why, assuming doctors can object, why isn't that enough to remedy their issue? Do we also have to entertain the argument that no one else in America should have access to this drug? And the attorney started to go into the emergency nature of the situations again, but this time Gorsuch cut her off. And he said, quote, I think what Justice Jackson is saying is

let's forget all that with respect to your clients. Normally under Article 3, traditional equitable remedies, we say provide a remedy that addresses the asserted injuries and go no further. We have before us a handful of individuals who have asserted a conscience objection. Normally we would allow equitable relief to address them. Recently, I think what Justice Jackson is alluding to, we've had what some might call a rash of universal injunctions or vacatures. And 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 federal government action. What are your thoughts on that? End quote. And the attorney argued that she didn't really have, you know, a great argument. She could tell Gorsuch

was feeling pretty passionate about this. She just said a court can issue any and all relief that's appropriate. To which Alito responded, why can't we just address the parties before the court rather than going to the agencies and saying you can't do this anywhere? And the attorney said, well, this would be impractical in the real world and started to go back to the emergency nature of the situations. And she posed the question, you know, would the doctor have to know before he or she scrubs in what the issue is? And went to pose another question, but Gorsuch cut her off again and said, I went back and looked and there were exactly zero universal injunctions during Franklin Roosevelt's 12 years in office. And over the last four years or so, the number is something like 60 and maybe more than that. It's a relatively new thing and you're asking us

to extend and pursue this relatively new remedial course, which this court has never adopted itself. Lower courts have kind of run with this, and I just want to give you one more shot with that. End quote. And the attorney argued that equity requires that the parties before the court get relief. And in this case, she said, you have non-regulated parties, those being the doctors, and their only availability for relief is if the court does something to the FDA order or regulation at issue. Otherwise, if the court doesn't, the parties are out of luck, and that is inconsistent with equity. At this point, Alito sort of let up and turned it over to another justice, Justice Kagan, who then

brought this back to the basic theory of standing. She said, when you went through your opening statement and the factors that are necessary for standing, it sounded very probabilistic. Is that your theory? And the attorney said, no, what we really think shows that the respondents have standing here is the FDA's own acknowledgments that emergency room doctors are critical to the safety of the drug. And Kagan said, well, then I think it is your theory. Kagan said, pick one doctor that you can point to that can show an actual injury, not just probabilistic. And the attorney pointed to two doctors specifically, and Kagan said, okay, now show me where those two doctors have shown the required injury or traceability.

And the attorney then turned the attention to one doctor specifically, and Kagan said, tell me which emergency treatment that doctor had a stated objection to and still had to participate in. And the only thing the attorney could do at that point was turn to a treatment that the doctor had participated in, but said there was no stated objection because in life-threatening situations like these, doctors can't really object. And she said the choice for the doctor is they either scrub out and try to find someone else to do the treatment while someone's potentially, you know, suffering a life-threatening problem. And Kagan cut her off and said, quote, usually when you have conscience objections like this, the individuals make the objections known. It may be harder, it may be easier,

but most hospitals have mechanisms in place to ensure doctors have an opportunity to object. There's nothing that you have that shows that this has happened to either of the doctors you point to and that's required here, end quote. Justice Alito then offered the attorney for the alliance a little bit of relief and referenced a case that does allow probabilistic situations for standing as long as the proper data exists. And the attorney, of course, agreed and cited to that data I mentioned earlier, which shows that two to five percent of women may experience adverse events from the drug. Justice Barrett then dove into standing a little bit, and she said, as I read Dr. Francis's statement, she says her partner was forced to perform a DNC when there

was a living fetus, but that she performed just a DNC. But the fact that she performed a DNC doesn't mean there was a living fetus or embryo because you can have a DNC after a miscarriage. So the difficulty here is that the affidavits read as if the conscience objection is strictly to actually performing an abortion to end the life of a living fetus or embryo. And I don't read either Dr. Skopp or Dr. Francis to ever say that they participated in that. Do you want to address that? And the attorney sort of tried to rebut this and say that Dr. Francis's affidavit can be read as a broader conscience objection. But even if it were interpreted as a narrower objection, specifically, you know, a conscience objection to abortion, the data still supports such a conscience objection.

And this goes back to what Pellegar and Kagan were talking about earlier on in oral arguments. And finally, Justice Thomas asked the attorney to comment on the comstock act and the attorney said quote we don't think there's any case of this court that empowers the fda to ignore federal law she said the plain text of the comstock act is pretty clear you can't mail drugs the fda can't ignore that so look overall the justices definitely seemed as if they were leaning in favor of the government, and it could go a few ways. The majority could find that the alliance didn't establish standing and just leave it at that and throw out the case and never even get to the merits of the case. Maybe the majority gets to the merits and says the remedy sought is overbroad, and there's no

relief here because the doctors can already launch conscious objections under federal law. Or maybe the majority gets to the merits and determines that this sort of thing is an agency determination, it's not the court's place to oversee that, and if the court were to get involved, it sets a dangerous precedent. So it can go a lot of ways, but I really don't see this going in the alliance's favor. Finally, let's get into not everything is bad. Let's leave this episode on a happy note. And I will warn you, the first one is both happy and sad, okay? But then the next one's just happy. You may have heard about the NYPD officer Jonathan Diller who was tragically killed in the line of duty while executing a traffic stop on Monday. There was a car parked illegally at a bus stop. The men in the car would not get out

of the car, so Diller and a second officer tried to remove them, and that's when one of the men fatally shot Diller, and Diller leaves behind a wife and a one-year-old son. Now, to bring even a little bit of light to that story, Dave Portnoy, the founder of Barstool Sports, immediately put a shirt up for sale on his website in honor of Diller. Portnoy said that he would match the money raised off of the purchases of the shirt, and all donations would go 100% to Diller's family. So as of yesterday, less than a week, you know, just a few days later after the shirt was put on sale, $750,000 had been

raised for Diller's family and Portnoy matched it, raising the total to a million and a half. Now, obviously this, you know, money doesn't bring him back, but it's another great example of a community coming together for those in need. The second good story for today, as I said, is just a happy one, so we'll leave on a good note. A doctor named Dr. Jones was on his way to the hospital cafe in New Smyrna Beach, Florida at Advent Health when team members started calling for help. And he would soon find out that there was a man in the parking lot who was going into cardiac arrest. Dr. Jones knew CPR well, but the problem was he had a broken arm.

And as we know, arms are pretty important for CPR. But did that stop him? No. He jumped right in, performed CPR with a broken arm on this man, Kevin Keyes, for 20 minutes and saved Keyes' life. After the fact, Dr. Jones said, quote, every second counts in a cardiac emergency, and I could tell Kevin hadn't had a heartbeat for a while. I did what any healthcare professional would do, whatever it takes to save a life, end quote. One final thing, don't forget the last day of the referral contest is Sunday,

so make sure to get your referrals in before 11.59 p.m. Eastern time. You can click the direct link in this episode description or just go to jordanismylawyer.com slash referrals, and the instructions are laid out there for you. Basically, the person with the most referrals wins $200 from me. I hope you enjoyed this deep dive and I hope you have a fantastic weekend. I will talk to you on Monday.