What the Abortion Pill Case Is Really About

Plus: Is there a Gorsuch-Jackson alliance?

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Sarah and David discuss the legal arguments and media spin around the Mifepristone abortion pill case.

The Agenda:
—Mifepristone at the Supreme Court
—SCOTUS and the 5th Circuit
—Arresting a 72-year-old woman
—The “Burning Man” festival of Alaska
—Red brief, green brief, orange brief too
—The stigma of the green bubbles and the DOJ’s antitrust case against Apple

Show Notes:
—Oral argument transcript, FDA v. Alliance Hippocratic Medicine
—Federal Judge Roy J. Altman speaks on his recent trip to Israel
—Sarah v. Kara on Bill Maher

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Comments (64)
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  1. Jcsheats

    Sorry David--The Blue versus Green thing is an Apple problem, not Android. The rest of us have no problem texting with all the various features that break with Apple. Apple is the one who won't keep up with the times!

    And would anybody still be texting anyway? That's so last decade! There's no reason to be doing that anymore with all the messaging options available today.

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  2. David S

    Re Apple, I think Sarah has it largely correct. Trinko, LLP, 540 US 398 (2003), will be an obstacle to the DOJ's case:

    The complaint alleges that Verizon denied interconnection services to rivals in order to limit entry. If that allegation states an antitrust claim at all, it does so under §2 of the Sherman Act, 15 U. S. C. §2, which declares that a firm shall not “monopolize” or “attempt to monopolize.” Ibid. It is settled law that this offense requires, in addition to the possession of monopoly power in the relevant market, “the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.” United States v. Grinnell Corp., 384 U. S. 563, 570–571 (1966). The mere possession of monopoly power, and the concomitant charging of monopoly prices, is not only not unlawful; it is an important element of the free-market system. The opportunity to charge monopoly prices—at least for a short period—is what attracts “business acumen” in the first place; it induces risk taking that produces innovation and economic growth. To safeguard the incentive to innovate, the possession of monopoly power will not be found unlawful unless it is accompanied by an element of anticompetitive conduct.

    Firms may acquire monopoly power by establishing an infrastructure that renders them uniquely suited to serve their customers. Compelling such firms to share the source of their advantage is in some tension with the underlying purpose of antitrust law, since it may lessen the incentive for the monopolist, the rival, or both to invest in those economically beneficial facilities. Enforced sharing also requires antitrust courts to act as central planners, identifying the proper price, quantity, and other terms of dealing—a role for which they are ill-suited. Moreover, compelling negotiation between competitors may facilitate the supreme evil of antitrust: collusion. Thus, as a general matter, the Sherman Act “does not restrict the long recognized right of [a] trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.” United States v. Colgate & Co., 250 U. S. 300, 307 (1919).
    ....

    The 1996 Act is in an important respect much more ambitious than the antitrust laws. It attempts “to eliminate the monopolies enjoyed by the inheritors of AT&T’s local franchises.” Verizon Communications Inc. v. FCC, 535 U. S., at 476 (emphasis added). Section 2 of the Sherman Act, by contrast, seeks merely to prevent unlawful monopolization. It would be a serious mistake to conflate the two goals. The Sherman Act is indeed the “Magna Carta of free enterprise,” United States v. Topco Associates, Inc., 405 U. S. 596, 610 (1972), but it does not give judges carte blanche to insist that a monopolist alter its way of doing business whenever some other approach might yield greater competition.

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    Bill Dyer (aka Beldar)

    You know what outside-the-workplace conduct would probably be good grounds to allege as a violation of an employment contract's morality clause?

    Cannibalism.

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    Paul Hoover

    Judge Altman’s presentation (referenced above) is outstanding. Thanks for sharing, AO!

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  5. Gideon

    I'm not sure if this is best served on AO or the Dispatch Podcast, but at some point, it would be interesting to get a general primer on how the media pays folks to be on shows. Is everyone getting paid on any given news show? I'm assuming public officials and their staffs aren't getting paid. Generally, how much do folks earn for these gigs? Does that impact the veracity of the views shared?

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    David_s_olson

    This is the best legal podcast out there. Having gotten the pleasantries out of the way, I'm up in arms about Sarah's statement on antitrust law. Sarah's argument that antitrust law has gotten less predictable in the years since the Sherman Act was passed (134 years ago, not coming up on 100, btw) is demonstrably wrong, and I think there is pretty universal understanding of that. The point of Judge Bork's book, The Antitrust Paradox, was exactly the one Sarah made on the podcast--in the 1970's antitrust law had multiple incommensurable values that judges were supposed to consider in deciding cases. Bork argued persuasively that this made antitrust law unpredictable and subject to judicial whimsy. But with the adoption of the "consumer welfare" standard, courts had a single standard by which to judge cases--does the challenged outcome on net harm consumers, taking into account both pro- and anticompetitive effects? This standard has been adopted by conservative and liberal antitrust lawyers alike, and successfully spread around the globe.
    Having said that, if what Sarah means is that the DOJ and FTC approaches under Biden are confused and confusing, I completely agree. The agencies have gone to war with the consumer welfare standard, which is evidenced in such things as their elimination of "consumer welfare" from the 2023Merger Guidelines. The important thing is that the DOJ and FTC have no substantial rulemaking authority in antitrust (putting aside the FTC's claimed authority under FTC Act §5 for the moment). I think this bad thinking on the part of the Biden Administration will not have lasting effect in antitrust law, which has been worked into a fairly clean, if not beautiful, area of the law over the last 40+ years.
    Sorry to get so fired up, but as a teacher of antitrust law, this hit me in my feels.

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    OldschoolACLU

    Off topic: but can you guys weigh in on the congestion tax in NYC and if there are any valid constitutional legal issues?

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  8. Michael

    As a phone user I love my android phones. As a capitalist I love owning Apple stock to earn money thanks to those willing to overpay for their products. Best of both worlds. :)

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  9. Jabobward

    David's statement about Tennessee orange was particularly egregious for a VFL such as myself. Whenever someone brags about their iphone I ask, "So are you rich or just an elitist?"

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  10. Don Thiry

    Couldn’t one suspect that more 5th circuit cases are getting to scotus because more nonsense is coming up from that circuit?

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    1. EireExpat

      Another legal podcast theory is slapping down the 5th Circuit is what allows SCOTUS to appear quite moderate

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