Alliance for Hippocratic Medicine On Remand
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 C
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