The Supreme Court on Thursday rejected a legal attack on the most common abortion law, unanimously ruling that the plaintiffs lacked standing to sue in the first place. Justice Brett Kavanaugh’s opinion preserved access to mifepristone, the first medication abortion drug approved by the Food and Drug Administration in 2000. The plaintiffs, a group of anti-abortion doctors and dentists, made objectively false claims about the dangers of mifepristone and argued that federal courts should ban or curtail public access to mifepristone in all 50 states. But the activists never intended to prescribe the drug or treat patients who used it, and therefore had no right to challenge the drug’s approval in court, the court ruled.
But the ruling wasn’t a complete defeat for anti-abortion activists. Notably, Justice Kavanaugh slipped language into his opinion that would have expanded protections for doctors who refuse emergency abortions, potentially endangering patients’ lives. In a bonus episode of Amicus Slate Plus, Dahlia Lithwick and Mark Joseph Stern discuss Justice Kavanaugh’s concessions to the anti-abortion movement. The conversation has been edited and condensed for clarity.
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Dahlia Lithwick: Let’s talk about the elevator skunk, or conscience protection. What saved the FDA’s approval of mifepristone was this statement by Justice Brett Kavanaugh: Look, we already have conscience protections for health care workers. Doctors can’t be forced to do anything they don’t want to do, including performing abortions.But her friend Elizabeth Sepper, a professor at the University of Texas at Austin School of Law, quickly It pointed out It is not entirely neutral on conscience rights: in fact, she argues, Kavanaugh’s opinion significantly expands conscience protections beyond what was previously available.
Mark Joseph Stern: There were two ways the Supreme Court could have ruled. First, the side effects of mifepristone are very Low. Very few people go to the hospital with life-threatening symptoms after taking this drug. So the chances that a woman will take mifepristone, go to the hospital, and get treatment from one of these doctors are virtually zero. And the Supreme Court, in a 2009 case, Summers v. Earth Island InstitutePlaintiffs cannot establish standing based on the statistical probability that government action will affect their rights in the future. Standing cannot be established based on statistical inferences.Number The circuit did so. It is not allowed.
However, that was not the basis on which the Supreme Court overturned 5.Number It’s a circuit, right?
Yes. Instead, Kavanaugh said that the conscience rights of doctors and other health care professionals are very strongly protected in this country. We have federal law that provides ironclad protections against forcing a doctor to perform an abortion against their will or assisting in any kind of abortion care. Kavanaugh also quoted Attorney General Elizabeth Preloger, who spoke on this issue during arguments in both this case and the EMTALA case, which asked when doctors must perform emergency abortions.
During both arguments, Preloger promised that federal law “will not ignore the conscience objections of individual physicians,” and Kavanaugh quoted her on that point. He added that doctors can refuse to treat abortion patients even in “medical deserts” where there are no other doctors available to intervene, even if the patient is bleeding on the operating table and will die without treatment. That’s how broadly he interprets conscience law.
Is that right? That seems like a very broad interpretation of the Code of Conscience. It could potentially put the patient’s life at risk.
This is actually a hotly contested argument. The Attorney General adopted this argument to win these cases, and I don’t blame her. She has to do what it takes to win. But as Sepper pointed out, this was actually a big fight during the passage of the Affordable Care Act. Republicans and the Catholic Conference of Bishops were pushing Congress to add new, stronger conscience protections to prevent doctors from having to perform emergency abortions. But Congress didn’t do that.
So Kavanaugh effectively wrote these failed amendments into law by simply declaring as fact that conscience protections are so strong that doctors will never have to assist with emergency abortions. It’s a clever move. In this so-called victory for medication abortion, Kavanaugh has given a highly controversial interpretation of the conscience clause. He has turned this case into an opportunity to extend conscience protections to anti-abortion health care workers.
Right: Sepa I have writtenThis interpretation “creates a legal safe harbor to deny emergency abortion care nationwide. Catholic hospitals and dissenting health care providers (if they exist) will feel empowered by this Court to deny care to pregnant people whose lives and health are at serious risk.”
It is worth noting that abortion opponents have celebrated this aspect of the ruling, calling it a major victory for conscientious objectors.
I am a little surprised that the three liberal justices did not point to a more straightforward approach here. Summers And the denial of standing based not on Kavanaugh’s biased arguments but on “statistical probability” theory: liberals may have decided to call this a win, and I certainly respect their strategic choice, but it also included aiding the anti-abortion movement.
So what does this ruling actually give pro-abortion advocates? The status quo remains the same. Abortion pills are still illegal in states that criminalize abortion. They’re still banned “controlled substances” in Louisiana. If you live in a Republican-leaning state that bans reproductive health services, this ruling doesn’t affect you at all. You still don’t have bodily autonomy. If you live in a Democrat-leaning state, you just maintain the rights you had yesterday. An unelected federal judge didn’t take those rights away from you. At the very least, still.
this is Opinionpaloozaan article from Slate magazine reporting on a major Supreme Court decision handed down in June. AmicusThis year, How fundamentalism swallowed the lawThe best way to support our work is to get involved Slate Plus(If you are already a member, Donate or Merchandise! )
