The Skinny on SCOTUS - 6-13-24 Edition: Abortion Pill Still Standing

We're getting into crunch time with Supreme Court decisions for the October 2023 term — it's mid-June, and we had roughly 30 decisions left to go to start the day. As it stands, the only formal decision day on the court's calendar is June 20. However, Friday is now marked as a "Non-Argument Day," indicating it could possibly see some additional decisions handed down. And expect several more decision days to be added to the calendar in short order.

The court dispensed with three more decisions today, one of which is the headline-grabber regarding the abortion pill, mifepristone. That decision was a 9-0 "win" for the abortion pill, which we'll detail further below. A trademark case also garnered a unanimous decision, and one involving Starbucks, unionizing employees, and the National Labor Relations Board wound up 8-1, with the sole dissenter being Justice Ketanji Brown Jackson, though that was only in part, and she did concur in the judgment. Without further ado:

June 13, 2024 Decisions

Vidal v. Elster

Date: June 13, 2024

Author: Thomas

Split: 9-0 (with multiple concurrences)

Dissent: N/A

Appeal From: Federal Circuit

Basic Facts:

Drawing on a 2016 Presidential primary debate exchange between then-candidate Donald Trump and Senator Marco Rubio, respondent Steve Elster sought to federally register the trademark “Trump too small” to use on shirts and hats. An examiner from the Patent and Trademark Office refused registration based on the “names clause,” a Lanham Act prohibition on the registration of a mark that “[c]onsists of or comprises a name . . . identifying a particular living individual except by his written consent,” 15 U. S. C. §1052(c). The Trademark Trial and Appeal Board affirmed, rejecting Elster’s argument that the names clause violates his First Amendment right to free speech. The Federal Circuit reversed.

Issue:

Whether the refusal to register a mark under Section 1052(c) violates the Free Speech Clause of the First Amendment when the mark contains criticism of a government official or public figure.

Holding: Reversed.

The Lanham Act’s names clause does not violate the First Amendment.

Skinny: The holding and rationale for it are quite lengthy and, as noted above, there are multiple concurrences, but the long and the short of it is: You can't trademark "Trump too small" because the "names clause" of the Lanham Act prohibits registering a mark that refers to a living individual without his or her consent.

Starbucks Corp. v. McKinney

Date: June 13, 2024

Author: Thomas

Split: 8-1

Dissent: Jackson (in part, but concurring in the judgment)

Appeal From: Sixth Circuit

Basic Facts:

After several Starbucks employees announced plans to unionize, they invited a news crew from a local television station to visit the store after hours to promote their unionizing effort. Starbucks fired multiple employees involved with the media event for violating company policy. The National Labor Relations Board filed an administrative complaint against Starbucks alleging that it had engaged in unfair labor practices. The Board’s regional Director then filed a petition under §10( j) of the National Labor Relations Act seeking a preliminary injunction for the duration of the administrative proceedings that would, among other things, require Starbucks to reinstate the fired employees. The District Court assessed whether the Board was entitled to a preliminary injunction by applying a two-part test that asks whether “there is reasonable cause to believe that unfair labor practices have occurred,” and whether injunctive relief is “just and proper.” McKinney v. Ozburn-Hessey Logistics, LLC, 875 F. 3d 333, 339. Applying this standard, the District Court granted the injunction, and the Sixth Circuit affirmed.

Issue:

Whether courts must evaluate the NLRB's requests for section 10(j) injunctions under the traditional, stringent four-factor test for preliminary injunctions or under some other more lenient standard.

Holding: Vacated and remanded.

When considering the NLRB’s request for a preliminary injunction under §10( j), district courts must apply the traditional four factors articulated in Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7.

Skinny: This is a procedural ruling. In a nutshell, the NLRB has to jump through the same hoops as anyone else to obtain a preliminary injunction regarding actions taken by an employer.

Food and Drug Administration v. Alliance for Hippocratic Medicine (consolidated with Danco Laboratories, L.L.C. v. Alliance for Hippocratic Medicine)

Date: June 13, 2024

Author: Kavanaugh

Split: 9-0

Dissent: N/A

Appeal From: Fifth Circuit

Basic Facts:

In 2000, the Food and Drug Administration approved a new drug application for mifepristone tablets marketed under the brand name Mifeprex for use in terminating pregnancies up to seven weeks. To help ensure that Mifeprex would be used safely and effectively, FDA placed additional restrictions on the drug’s use and distribution, for example requiring doctors to prescribe or to supervise prescription of Mifeprex, and requiring patients to have three in-person visits with the doctor to receive the drug. In 2016, FDA relaxed some of these restrictions: deeming Mifeprex safe to terminate pregnancies up to 10 weeks; allowing healthcare providers, such as nurse practitioners, to prescribe Mifeprex; and approving a dosing regimen that required just one in-person visit to receive the drug. In 2019, FDA approved an application for generic mifepristone. In 2021, FDA announced that it would no longer enforce the initial in-person visit requirement. Four pro-life medical associations and several individual doctors moved for a preliminary injunction that would require FDA either to rescind approval of mifepristone or to rescind FDA’s 2016 and 2021 regulatory actions. Danco Laboratories, which sponsors Mifeprex, intervened to defend FDA’s actions.
The District Court agreed with the plaintiffs and in effect enjoined FDA’s approval of mifepristone, thereby ordering mifepristone off the market. FDA and Danco appealed and moved to stay the District Court’s order pending appeal. As relevant here, this Court ultimately stayed the District Court’s order pending the disposition of proceedings in the Fifth Circuit and this Court. On the merits, the Fifth Circuit held that plaintiffs had standing. It concluded that plaintiffs were unlikely to succeed on their challenge to FDA’s 2000 and 2019 drug approvals, but were likely to succeed in showing that FDA’s 2016 and 2021 actions were unlawful. This Court granted certiorari with respect to the 2016 and 2021 FDA actions.

Issue:

Whether respondents have Article III standing to challenge FDA's 2016 and 2021actions.
Whether FDA's 2016 and 2021 actions were arbitrary and capricious.
Whether the district court properly granted preliminary relief.

Holding: Reversed and remanded.

Plaintiffs lack Article III standing to challenge FDA’s actions regarding the regulation of mifepristone.

Skinny: While consequential, this is again a procedural ruling. (It doesn't have anything to do with whether one thinks the drug — or abortion, in general — is good or bad.) The court notes that it's possible someone else might have standing to challenge the FDA's relaxed regulation of the drug, but the plaintiffs here cannot show that they suffer any injury from the FDA's actions (they're not required to use or prescribe the drug), and so they cannot properly challenge those actions.

And if readers will forgive my personal observation here: