Editor’s note: Mary Ziegler (Follow) is the Martin Luther King Jr. Professor of Law at the University of California, Davis. “Dollars for Life: The Anti-Abortion Movement and the Collapse of the Republican Establishment” and ““The Roe Case: The History of a National Obsession.” The opinions expressed in this commentary are her own. Further comments On CNN.
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On the surface, the Supreme Court’s unanimous decision on Thursday in FDA v. Hippocratic Medical Association appeared to put an end to a years-long battle over the Food and Drug Administration’s approval of mifepristone, which is used in more than half of all abortions. But the truth is that the fight is far from over. With the Supreme Court leaving central questions about access to mifepristone unanswered, conservatives are sure to launch a number of new attacks on abortion.
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Mary Zeigler
The Alliance Defending Freedom (ADF) American Anti-Abortion Doctors, a leading group in the conservative Christian legal movement, filed a lawsuit last year making the shocking claims that the FDA did not have the authority to approve mifepristone in 2000, and that when it made it available via telemedicine, the Comstock Act, a 19th century obscenity law, made it illegal to send the pills by mail.
The Supreme Court unanimously dismissed the plaintiffs’ claims and found (correctly, in my view) that the plaintiffs lacked standing to begin with. But the questions raised by ADF do not go away. They never will. Other anti-abortion plaintiffs stand ready to make the same arguments and argue that they have standing where others have failed. And important questions about the fate of the abortion pill, including those related to the Comstock Law, will likely come before the Supreme Court at a later date.
Let’s start with the decision that the Supreme Court actually made. The decision focused entirely on the fact that these plaintiffs did not have a right to sue. Usually, when a plaintiff sues, they can point to obvious harms. But these plaintiffs did not use or prescribe mifepristone. They had to come up with a more outlandish theory of how mifepristone affected them, which gave them a right to sue to challenge their access to mifepristone. The doctors first argued that mifepristone could cause complications that could lead patients to seek emergency treatment. The doctors might then violate their own conscience by participating in emergency abortions to treat patients with abortion complications.. The court found this argument odd, given that federal law already provides many protections for medical professionals who have conscientious objections.
The doctors’ other arguments were even more absurd. They pointed to financial damages they could suffer, such as higher insurance rates. The court was right to say that this argument was not only speculative, but completely unfeasible. The court gave a number of bizarre examples of what could happen if the plaintiffs were successful. “Firefighters can sue to challenge lax building codes that increase fire risks,” Justice Brett Kavanaugh wrote in the court’s opinion. “Teachers in border states can sue to challenge lax immigration policies that lead to classroom overcrowding.”
The Court most strongly rejected the argument that the ADF had standing to sue because it had to spend money and time fighting mifepristone “at the expense of other spending priorities.” The Court also correctly saw through this argument: it meant that plaintiffs could fabricate standing to sue simply by filing a lawsuit.
But that doesn’t mean the fight against mifepristone is over. Other plaintiffs may try to establish standing. U.S. District Judge Matthew Kacsmarik has already ruled that three conservative states can join the lawsuit as plaintiffs. While the Supreme Court did not allow states to join the FDA v. Hippocratic Medical Union case, plaintiffs can still bring their own arguments in Kacsmalik. These conservative jurisdictions already ban abortions, but they allow residents to receive the pill through the mail, and they argue that the state will pay for emergency care for patients who suffer complications after taking mifepristone. The Supreme Court may find these standing arguments flawed, but it’s true that similar claims about mifepristone are likely to come up again.
The Comstock Act arguments are also likely to make it to the Supreme Court, regardless of the outcome of state challenges. Conservatives close to former President Donald Trump have proposed a plan to enforce the Comstock Act as a de facto nationwide abortion ban. The Comstock Act has not been interpreted by the courts as an all-exceptions ban since the 1930s. But conservatives argue that the Comstock Act is a ban on the mailing of all abortion-related items. Because virtually all abortions involve items sent by mail, including not only drugs but also medical equipment, conservatives argue that the Comstock Act amounts to a nationwide ban that voters cannot be persuaded to support.
Supreme Court in FDA v. Hippocratic Medical Association He avoided discussing the Comstock Act. The politics of this move are understandable. Justices Samuel Alito and Clarence Thomas While oral arguments in the abortion pill case have led to arguments against the Comstock Law, it’s likely we’re not yet ready to tackle that issue.
moreover, In an election year, the mere mention of the Comstock Act by two justices in a ruling would have been politically provocative. Trump avoided answering questions about what he would do about the Comstock Act, promising to make a statement on the issue but never doing anything. If Justices Alito and Thomas had identified the Comstock Act as an anti-abortion law, the media and the Biden campaign would have pressured Trump to clarify his position.
The Supreme Court thus gave Trump a free pass. Voters who already know little about the Comstock Act may not hear much about it and its possible enforcement before the election. And if Trump wins and the Department of Justice begins to treat the Comstock Act as a ban on abortion, defendants such as pharmaceutical companies and doctors will undoubtedly fight back, taking cases all the way to the Supreme Court, which would then be forced to address the issues with the Comstock Act that the justices avoided in this case.
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Keeping mifepristone on the status quo for now could also be to Trump’s advantage. It would bolster his argument that abortion is now a states’ rights issue and that federal courts don’t have much of a say in the matter. This stance would make Trump less radical and more palatable to voters ahead of the 2024 election.
So even if Thursday’s ruling clears the way for access to mifepristone for now, the case isn’t a big win for abortion rights in the long term. The Supreme Court isn’t done with abortion issues this term, and is due to rule on another big case about emergency abortion access later this month.
The war over mifepristone ended in a unanimous decision because conservative justices have long been skeptical of the expansive standing argument and because the plaintiffs’ standing arguments were comically bad, regardless of their ideological biases. But the fight over access to the drug rages on, and the Supreme Court will likely remain at its center.
