Editor’s note: Carrie Sheffield is a columnist and news anchor in Washington, D.C. She holds a Master’s in Public Policy with a concentration in Business Policy from Harvard University, a Bachelor’s in Communications with honors from Brigham Young University, and completed a Fulbright scholarship in Berlin. Hopes for NOVAPregnancy Support Center in Falls Church, Virginia. The opinions expressed in this commentary are her own. Read more Opinion articles On CNN.
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The Supreme Court’s unanimous decision Thursday against the plaintiffs in the case Food and Drug Administration v. Hippocratic Medical Association means that current Food and Drug Administration (FDA) regulations allowing the use of the abortion drug mifepristone will remain in effect.
Unfortunately, the Supreme Court’s dismissal was based on standing (whether the plaintiffs had a right to sue for injuries suffered under the law at issue) and not on the underlying claims about patient safety and FDA protocols brought by a group of approximately 30,000 doctors and other medical professionals. The group argued that “FDA labels state that approximately 1 in 25 women who take chemical abortion pills end up in the emergency room.”
I disagree with the court’s finding that these doctors lack standing to sue. The fact that this lawsuit was successfully brought by the plaintiffs in a lower federal court supports their standing argument. Kristen Waggoner, president and CEO of the Alliance Defending Freedom, a nonprofit legal group representing the plaintiffs, told ABC News that these doctors need to care for women who have used mifepristone and engage them directly about its use and effectiveness. And there’s no question that preventing medical harm is in the public interest, especially for doctors.
But even if the plaintiffs had been found without standing, the Supreme Court could have taken the opportunity to address the core issues in its decision. However, the Court took a narrow view and was apparently unwilling to consider whether chemical abortion with mifepristone posed undue risks to women, meaning that the FDA had failed in its legal obligation to protect the health, safety, and welfare of girls and women. The Court also did not consider the human rights violations of taking the lives of unborn children.
The Court also avoided the issue of executive branch overreach that this case embodied, but if, as expected, it overturns its holding in another case it decides this session, Chevron v. Natural Resources Defense Council, it could soon deal a major blow to agency deference.
Overall, the abortion pill decision raises questions for pro-life activists like me who are concerned about the political backlash to the Supreme Court’s 2022 Dobbs decision. The decision to strike down Roe v. Wade, which guaranteed a constitutional right to abortion, has discouraged justices from making substantive decisions in important cases regarding abortion.
Chief Justice John Roberts’ record gives particular reason for concern: Since at least 2009, he has been called a “gradualist” by a variety of people, including University of Virginia Law School professor and Federalist Society lecturer Christine E. Hickman of the Harvard Law Review, Adam Liptak of The New York Times, and Josh Gerstein, senior legal reporter at Politico.
This isn’t just a matter of style or temperament. When Roberts issues narrow technical decisions while ignoring important but contentious legal issues, he seems to let politics and criticism sway his decisions. This is also a problem for his fellow justices. Gerstein reports that Roberts’ colleagues opposed the Supreme Court’s suggestion in Dobbs to avoid at least temporarily overturning Roe while aligning with Mississippi, which has a near-ban on abortion after 15 weeks of pregnancy.
“The Court’s conservative wing dismissed Justice Roberts’ position as unprincipled and impractical, while the liberal justices called it ‘wrong,’ without elaborating on their dissents,” Gerstein wrote.
Chief Justice Roberts has generally tended to avoid sweeping rulings, concerned with broader societal impacts rather than strictly following the laws set out in the Constitution. He has repeatedly argued that justices should not be political. In his 2005 confirmation statement, he argued that justices should be invisible “umpires,” not “politicians who can promise certain things in exchange for votes.” In 2016, he expressed concern that partisan rifts were negatively affecting public opinion of the Supreme Court’s role.
The Mifepristone case shows how this undermines the public interest in two ways: on the one hand, it avoids providing legal clarity on a policy that urgently needs review: the use of Mifepristone; on the other hand, it suggests that the Court is in fact more interested in protecting its legacy against political considerations and public opinion by avoiding lightning rod issues than in deciding the substantive parts of the case.
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This dynamic is further strengthened by the fact that political backlash can come from both sides. In addition to the popularity of chemical abortion, dramatic decisions that go beyond the narrowest scope of litigation are sometimes called “judge-legislation.” In my nearly two decades of observation and activity in the conservative movement, this idea of ”judge-legislation” has drawn the ire of conservatives every time it has been mentioned.
If Thursday’s decision is a sign that the post-Dobbs Supreme Court is trying to steer clear of politics, that would be a shame not just for pro-life activists but for all Americans who deserve a Supreme Court that values fidelity to the law rather than popular opinion.
Perhaps the Supreme Court should heed the warning of former British Prime Minister Margaret Thatcher: “It is very dangerous to stand in the middle of the road; you will be run over by traffic on both sides.”
