The Current Attack on Abortion Pills Will Fail. The Next One Will Be So Much Worse.
There are always a couple of tells when the most conservative Supreme Court in more than a century finds itself adjudicating a truly mortifying and meritless case. One is that it’s coming up by way of the U.S. Court of Appeals for the 5th Circuit, a court that so consistently shovels its worst constitutional garbage upward that the high court conservatives are often forced to reluctantly lob it back. Another tell is when the facts of the case are so laugh-out-loud insane that even conservative justices can’t bring themselves to adopt them or the underpinning legal reasoning with a straight face. There’s yet a third tell: when the conservative justices start injecting a bunch of nonsense and randomized pet peeves into oral argument to distract from how embarrassing it would be to discuss the merits of the actual case.
All three tells were present Tuesday morning, when the court heard FDA v. Alliance for Hippocratic Medicine, a challenge to the current medication abortion regime nationwide. This case is about a handful of physicians seeking to wield their “conscience objections” to abortion as a cudgel against everyone’s access to safe reproductive care throughout the country. So, it was heartening to see that the majority of the Supreme Court doesn’t have the conscience to take it seriously. It was harrowing, however, to hear at least two justices embrace the plaintiffs’ foundational theory: that a long-defunct federal law already bans medication abortion, and maybe procedural abortion as well—and that the courts can revive this ban once they get their hands on the right case.
Before we reach the doomsday scenario, let’s start with the case at hand, which is laughable to the point of frivolity. In 2000 the Food and Drug Administration approved mifepristone, the first drug in a medication abortion. Initially, and under huge pressure, the agency imposed tight restrictions on the drug, including mandatory doctor’s visits, in-person dispensing requirements, and strict limits on pharmaceutical availability. Over the next 23 years, the FDA loosened these rules, concluding—based on extensive studies—that they did not improve health outcomes for patients. Today, in blue states, mifepristone can be prescribed via telemedicine and mailed to a patient’s home. It remains almost entirely illegal in the 14 states that have outlawed abortion.
The plaintiffs in Alliance for Hippocratic Medicine are a group of anti-abortion physicians who do not prescribe mifepristone. Rather, they worry that someday, some patient who has taken mifepristone prescribed by a different doctor might have serious adverse complications and end up in their care—forcing them to be “complicit” in abortion simply by treating the patient. These physicians claim that the only solution to their speculative fear is a nationwide ban on mifepristone, achieved through a judicial order that revokes the FDA’s approval of the drug for everyone. As Justice Ketanji Brown Jackson put it Tuesday, the case reflects a “mismatch” between the harms alleged and the remedy demanded: “They’re saying, ‘Because we object to having to be forced to participate in this procedure, we’re seeking an order preventing anyone from having access to these drugs at all.’ ”
In a saner judiciary, the case would have been booted out of the courthouse with prejudice, because the plaintiffs have neither sustained nor suffered an injury: They are merely speculating about the possibility of a future harm, which does not establish standing under Article 3 of the Constitution. And that possibility really is quite remote, since mifepristone has been proved safe in more than 100 scientific studies.
Alliance Defending Freedom, the far-right, Christian nationalist organization that represents the plaintiffs, knows that this theory of standing violates every rule in the book. So it brought the lawsuit in Amarillo, Texas, where it was guaranteed to draw Judge Matthew Kacsmaryk, a Donald Trump appointee who has devoted his life to criminalizing abortion, along with other theological battles. Kacsmaryk attempted to issue a nationwide ban on mifepristone, which the 5th Circuit whittled down, allowing the drug to remain legal while reimposing the immense burdens that would put it out of reach for countless patients. But the Supreme Court froze the 5th Circuit’s order last year, sending a signal that a majority would not play ball with this humiliating mess of a case. Arguments on Tuesday confirmed that most justices remain skeptical toward ADF’s “We’re scared we might have to treat abortion providers’ patients” theory of cognizable harm and standing.
Lurking under the embarrassment of these standing arguments about wholly speculative harms lies the embarrassment of the scientific claims proffered to support them. To show that mifepristone is actually super dangerous, Kacsmaryk and the 5th Circuit relied on junk science peddled by shameless hucksters. As Jessica Ellsworth, representing the maker of mifepristone, told the justices: “You have a district court that, among other things, relied on one study that was an analysis of anonymous blog posts. You have another set of studies that he relied on that … have since been retracted for lack of scientific rigor and for misleading presentations of data.”
Lurking beneath that embarrassment lies the fact that if the plaintiffs were allowed to prevail in this case, pharmaceutical companies and the FDA would be subject to fanciful challenges by anyone who has ever objected to a drug. Mifepristone, recall, has been safely used by millions of Americans and is less dangerous than Tylenol and Viagra. Thousands of other drugs pose greater safety risks yet remain on the market, indeed sold over the counter, because experts have concluded that the benefits outweigh the dangers.
If Kacsmaryk and the 5th Circuit are correct, then any doctor can waltz into court and secure a nationwide injunction against a drug they dislike on the grounds that they might one day treat a patient who takes it. Further, the FDA’s review process, the global gold standard for drug approval, would fall apart—which is why the biopharma industry has lined up on the government’s side. The consequences for development and testing of new drugs would be catastrophic. Jackson acknowledged as much when she asked Ellsworth to describe “concerns about judges parsing medical and scientific studies” without any “specialized scientific knowledge with respect to pharmaceuticals.”
In the face of this skepticism, Erin Hawley—an ADF lawyer and wife of Jan. 6 rally boy Sen. Josh Hawley—struggled to explain the reason why a handful of activist physicians should be able to ensure that every woman in America is denied access to mifepristone. Her answer? They don’t want to be “complicit” in abortion. The problem here is that these doctors are already amply protected from coercion in abortion care by federal and state conscience laws, as Solicitor General Elizabeth Prelogar assured Justice Brett Kavanaugh. They are welcome to walk away from an abortion patient in need of their follow-up care. Even Justices Neil Gorsuch and Amy Coney Barrett and Chief Justice John Roberts appeared to be embarrassed with the slurry of bad plaintiffs and worse evidence that Hawley paraded before them as a serious legal challenge. As usual, when it was clear that the case was too asinine to contemplate, what surfaced instead was a protracted gripe about nationwide injunctions from Gorsuch and aggrieved grousing from Justice Samuel Alito, who sounded annoyed that ADF hadn’t cooked up a more plausible case.
Alito and Justice Clarence Thomas are never ones to let an embarrassment of a lawsuit go to waste. And they were openly eager to embrace the chilling argument at the heart of ADF’s case: the notion that the Comstock Act of 1873 prohibits the distribution of abortion pills and perhaps even equipment used for procedural abortions. Under this theory, abortion is already a criminal offense under federal law, and every abortion provider in the country may be prosecuted and imprisoned immediately. Conservative groups like the Heritage Foundation are already urging Trump to issue an executive order on Day 1 banning medication abortion. Republican lawyers are preparing to use the Comstock Act to prohibit all abortions, not just pills. This reading of the zombie relic is so broad that a Justice Department and judiciary hostile enough to reproductive freedom could contort it to make all abortion care a felony.
Predictably on Tuesday, and with a case built of vapors to work with, Alito and Thomas went full Comstock. Alito scolded the FDA for letting providers mail abortion pills despite the existence of the law. “This is a prominent provision,” the justice told Prelogar. “It’s not some obscure subsection of a complicated, obscure law. They knew about it. Everybody in this field knew about it.” Thomas warned Ellsworth that her client, the maker of mifepristone, lacked a “safe harbor” from prosecution over Comstock. “It’s fairly broad, and it specifically covers drugs such as yours,” he told her. (That claim is very much in dispute.) Alito and Thomas know they will likely lose this case, so they’re preparing for the next one. Maybe Trump will win and commence Comstock prosecutions. Maybe Kacsmaryk will issue a new ban on mifepristone at the behest of red states, as he is currently threatening to do. Either way, Comstock is racing toward the Supreme Court. And two justices have already aligned themselves with a sweeping interpretation of its puritanical prohibitions.
The FDA looks poised to win this silly case at the Supreme Court in June, but we cannot let the case’s silliness obscure all the future damage it tees up—to the practice of medicine, to women’s health, and to the credibility of a Supreme Court that once cared about credibility. Whenever a door closes on the worst MAGA toxins at this court, an Overton window opens to something so much worse. Health care professionals, biopharma companies, and reproductive rights advocates can cheer the probable outcome of Alliance for Hippocratic Medicine. But they can spare only a moment’s rest because Thomas and Alito, with the help of bad actors like ADF and Kacsmaryk, are already bringing the next battle to their doorstep.
