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The Supreme Court agreed on Wednesday to consider a challenge to access to mifepristone, the first drug used in medication abortion, teeing up the most important dispute over reproductive rights since Roe v. Wade’s reversal in June of 2022. Based on the narrow scope of the issue the court ultimately agreed to hear, there is good reason to believe that a majority of justices will quash the case by deciding that the plaintiffs had no business suing in the first place. Such a decision, which will come down months before the 2024 election, will probably be hailed as proof of the high court’s sober moderation. It will, in reality, prove no such thing. Rather, that outcome would leave the smoking wreckage of abortion access post-Dobbs intact, while pushing off, for now, its most unhinged expansion by a court below. More dramatically, such a move would leave open the possibility that a future Republican president could ban abortion nationwide without enacting a single new law by exploiting the puritanical Comstock Act of 1873. If, while protecting access to medication abortion, SCOTUS opts to keep this loaded gun on the table, then the legality of abortion in all 50 states will very much be on the ballot next year.
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In the United States today, most abortion patients use medication to terminate their pregnancies—a protocol that begins with mifepristone, which the Food and Drug Administration approved in 2000. (It’s used in combination with misoprostol, which can also terminate a pregnancy on its own.) More than 100 scientific studies have proven that this protocol is extraordinarily safe and effective; safer even than commonly used drugs like Tylenol, Viagra, and antibiotics. The risk of complications from a medication abortion is very low. Initially, the FDA forced patients to visit the doctor three times over the course of treatment. By 2016 and 2021, however, the agency had relaxed this requirement, and today, it allows providers to prescribe the medication via telehealth and have it mailed to patients, and no in-person visit is required. (It is, of course, generally illegal to provide these drugs in states that have banned abortion.)
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Read More After the Supreme Court overturned Roe, Alliance Defending Freedom—a far-right law firm that opposes all abortion access—filed a lawsuit designed to pull mifepristone from the market across the U.S. To create a plaintiff, ADF helped establish the “Alliance for Hippocratic Medicine,” a group of doctors vigorously opposed to reproductive rights. This organization was deliberately incorporated in Amarillo, Texas, so it could bring its suit before the lone federal judge who sits in Amarillo: Matthew Kacsmaryk, an extremist Donald Trump appointee who devoted his life to anti-abortion activism before joining the bench. Kacsmaryk, predictably, sided with the plaintiffs, revoking the FDA’s 23-year-old approval of mifepristone in a decision that imperiled the whole biopharma industry by sabotaging the entire federal drug approval process. His ruling would have opened the floodgates to anyone objecting to FDA approval of any drug, for almost any reason, waltzing into court to block it. The U.S. Court of Appeals for the 5th Circuit pared back his order but reimposed the old temporal requirements making the medication far more difficult to access. Then the Supreme Court swiftly froze Kacsmaryk’s entire decision by a lopsided vote. Months later, a defiant 5th Circuit ignored SCOTUS’ strong hint and tried again to reimpose the old, draconian requirements. So now the Supreme Court has entered the fray again, and will resolve the conflict by the end of the current term in June.
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There are good reasons to believe SCOTUS will chuck the case because the shady Alliance for Hippocratic Medicine and its members simply lack standing to sue and really always did. To let the plaintiffs into court, both Kacsmaryk and the 5th Circuit shamelessly butchered the law of standing, a lodestar of judicial restraint which requires a showing of imminent, concrete harm. To arrive at such a harm, the MAGA judges theorized the following chain of events: 1) A doctor with no connection to the plaintiffs prescribes mifepristone; 2) a patient takes the medication and suffers complications; 3) the patient seeks treatment from one of the plaintiffs; resulting in 4) the plaintiff being forced to complete the abortion; and 5) this treatment causes him “trauma” sufficient to establish standing.
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Never before has the Supreme Court held that a doctor faces a concrete harm under the Constitution by doing her job and helping a patient. But set that aside. The deeper problem is that the plaintiffs are merely speculating that on some unknowable day in the future, there is some statistical probability that they’ll treat a mifepristone patient. And the Supreme Court has expressly rejected this stats-based theory of standing. By embracing it, both Kacsmaryk and the 5th Circuit flouted binding precedent.
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There is a very good chance, then, that the Supreme Court will say the plaintiffs never had a right to file this suit and toss it out. We’ve seen hints to this effect already. After all, SCOTUS froze the lower court decisions shortly after they came down, an aggressive intervention that suggests most justices think the case is fundamentally bogus. Moreover, on Wednesday, the court sharply rejected the plaintiffs’ attempt to broaden their initial attack on mifepristone; a signal that it’s focused on standing rather than shoehorning its way to the merits. It’s a smart bet that a majority is prepared to say that these plaintiffs have no right to sue, ending the case’s complicated post-Dobbs issues at the starting gate. At that point all the energy that has led to one win after another for reproductive freedom in the ballot box can be dampened with false assurances that abortion is no longer under threat.
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If a decision against the plaintiffs on standing happens, it may be only a stay of execution for mifepristone. Because the plaintiffs here don’t just want to criminalize medication abortion; they want to ban all abortions throughout the country. In order to do so, they argue that the Comstock Act of 1873, a notorious anti-vice law, already outlaws access to reproductive care. One section of the statute makes it a federal crime to send, through the mail or any common carrier, “every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion.” Taken literally, and read in isolation from other provisions, this section would seem to make virtually all abortions unlawful. Mifepristone is a “drug” that causes abortion, as is misoprostol, so mailing medication abortion (to a patient, or to a doctor’s office or pharmacy) would be a criminal offense. But so would the shipping of any “article,” “instrument,” or other “thing” used for procedural abortion. The basic medical supplies necessary to perform abortions in-clinic would suddenly become contraband, their suppliers subjected to criminal penalties. This ban would cut across state lines, applying to red and blue states alike.
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For that reason, conservative activists are already pressing the next GOP president to invoke the Comstock Act to ban abortion in all 50 states. They argue that, under the law, doctors, pharmacists, and medical suppliers commit a criminal offense, subject to serious prison time, by facilitating any abortion. There is good reason to resist this interpretation: In the 20th century, lower courts rejected it in a string of decisions to which Congress acquiesced, and the law has never been enforced to prohibit abortions that are permitted under state law. But conservative jurists, including Supreme Court justices, could easily topple this consensus and empower a future president to wield the Comstock Act as a cudgel against abortion access, threatening providers and suppliers with prosecution and imprisonment. Kacsmaryk embraced this sweeping vision of Comstock; so did several judges on the 5th Circuit, including the notorious troll James Ho, though a majority ultimately decided the case on different grounds. If SCOTUS knocks this case on standing grounds, there’s no reason to believe that its decision will chill other Comstock-curious judges from adopting Kacsmaryk’s position someday soon.
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For those drawing comfort in the fact that not-losing at the court constitutes the new winning, there are three important cautions to keep in mind. The first is the standard warning that not-losing on a baseless and indefensible lawsuit never moves the goalposts but invariably moves the Overton window. The second is that not-losing on standing while opening up the prospect of someday losing on Comstock in a case where plaintiffs can make a credible case for standing is a loss for abortion access nationwide. The final caution is that Dobbs itself is a disastrous loss for reproductive freedom. Just ask Kate Cox. A Supreme Court end-of-term surprise in which the headlines blare that the court protected abortion rights is nothing more than an election-year valentine for Donald J. Trump, his three Supreme Court nominees, and the Ken Paxtons of the world, who will all live to immiserate women another day, and the day after that. Don’t make the mistake of being lulled into snooze in the same year Dobbs’ full viciousness is laid bare nationwide. Until every pregnant person in the country has equal access to reproductive freedom, we’re all still just choosing our own ending inside the same Handmaid’s Tale.
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