holding that a court may appropriately consider an issue first presented on appeal where an intervening case authority might change the result because a party “can hardly be faulted for failing to raise an argument before there was legitimate legal support for such an argument”
How later courts described this case
- holding that a court may appropriately consider an issue first presented on appeal where an intervening case authority might change the result because a party “can hardly be faulted for failing to raise an argument before there was legitimate legal support for such an argument”
- explaining that off-label use is legal “[a]bsent state regulation”
- relying on Ayotte to vacate in part a preliminary injunction of an entire statute and remanding to the district court to determine whether a narrower injunction would be sufficient
- attached Patient Agreement with respect to the use of Mifeprex ® (mifepristone) requiring patient to agree to "take Mifeprex in my provider's office"
Written by the judges who cited it.
The opinion
KAREN NELSON MOORE, Circuit
Judge, concurring in part.
Because I agree that Plaintiffs have satisfied the preliminary-injunction standard of demonstrating a strong likelihood of prevailing on the merits, I join Parts I though IV of the majority opinion. I also agree that in light of Ayotte v. Planned Parenthood of Northern New England, — U.S.-, 126 S.Ct. 961 , 163 L.Ed.2d 812 (2006), the preliminary injunction should be vacated in part and the case remanded to the district court to reconsider the scope of the injunction. Thus, I join Parts VI and VII. Finally, I join Part V only insofar as it recognizes that the district court’s limitation of the state’s expert-witness testimony is irrelevant to the outcome of this appeal. This irrelevance is precisely why I cannot, however, endorse the majority’s needless dicta on the merits of the evidentiary question.
Plaintiffs presented significant evidence on the safety benefits of the banned abortion procedure. The state attempted to counter this evidence with the testimony of its expert witness, Dr. Susan Crockett, but the district court excluded some of her testimony. The state now appeals this evidentiary ruling. The Supreme Court has instructed us that in these circumstances, Dr. Crockett’s testimony is irrelevant: ‘Where a significant body of medical opinion believes a procedure may bring with it greater safety for some patients and explains the medical reasons supporting that view, we cannot say that the presence of a different view by itself proves the contrary.” Stenberg v. Carhart, 530 U.S. 914, 937 , 120 S.Ct. 2597 , 147 L.Ed.2d 743 (2000). Because Plaintiffs presented “a significant body of medical opinion” supporting their position, Dr. Crockett’s “different view” could not have affected the merits. Id.; Richmond Med. Ctr. for Women v. Hicks, 409 F.3d 619 , 625 n. 1 (4th Cir.2005) (“Even if we assumed without deciding that the district court abused its discretion in excluding the Commonwealth’s opinion evidence, the consideration of that evidence would not change our result.”), petition for cert. filed, 74 U.S.L.W. 3352 (U.S. Dec. 1, 2005) (No. 05-730). Thus, it matters not a whit that the testimony was excluded. See FED. R. EVID. 103(a) (“Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected .... ”).
Presumably in recognition of Stenberg , the majority states that “this court need not resolve this issue now because Dr. Crockett’s proffered testimony, even if admitted into evidence, would not have been sufficient to defeat Plaintiffs’ motion for a *519 preliminary injunction.” Majority Op. at 514. It reiterates that “there is no reason to scrutinize the district court’s evidentiary ruling.” Id. Unfortunately, the majority ignores its own advice, as it proceeds to “scrutinize” the evidentiary ruling even though “there is no reason” to do so. Because the evidentiary issue has no impact on the outcome of this appeal, I do not join the majority’s dicta regarding this evidence.