Opinion: The abortion pill ruling was a gift to Trump

CNN

Opinion by Mary Ziegler

(CNN) — On the surface, the Supreme Court, with its unanimous decision in FDA v. Alliance for Hippocratic Medicine on Thursday, seemed to put an end to a long-running fight over the US Food and Drug Administration’s approval of mifepristone, a drug used in more than half of all abortions. The truth is that this fight is far from over: The Supreme Court didn’t answer central questions related to mifepristone access, and conservatives will surely tee up any number of new attacks on abortion.

The Alliance Defending Freedom (ADF),  a leading group in the conservative Christian legal movement, filed suit last year on behalf of a group of antiabortion doctors making explosive claims: The FDA never had the power to approve mifepristone in 2000, and when it came to making it available via telehealth, a 19th century obscenity law, the Comstock Act, made it illegal to ship the pills by mail.

A unanimous Supreme Court batted down the plaintiffs’ request, holding — correctly, in my view — that the plaintiffs never had standing to sue. But that doesn’t mean the questions raised by ADF are going away — not by a long shot. Other antiabortion plaintiffs are ready to bring the same claims,  and to assert that they have standing where others have failed. And critical questions about the fate of abortion pills, including the ones involving the Comstock Act, will likely return to the Supreme Court later on.

Let’s start with what the Supreme Court actually decided. The ruling focused entirely on the fact that these plaintiffs didn’t have standing to sue. Usually, when plaintiffs sue, they can point to an obvious injury. But these plaintiffs didn’t use mifepristone or prescribe it. They had to come up with more far-fetched theories about how mifepristone affected them and therefore gave them standing to bring a case challenging access to it. The doctors first argued that mifepristone may cause complications, and those complications may lead patients to seek out emergency care. That might force the doctors to violate their own consciences by participating in an emergency abortion in order to treat a patient with abortion complications. The court recognized this claim to be a strange one, given that federal law is already full of protections for medical professionals with conscience-based objections.

The doctors’ other standing claims were even more ridiculous. They pointed to financial harms they could suffer, like increased insurance rates. The court was right to say this claim was not only speculative but completely unworkable. The court offered any number of oddball examples that could follow if the plaintiffs prevailed. “Firefighters could sue to object to relaxed building codes that increase fire risks,” wrote Justice Brett Kavanaugh for the court. “Teachers in border states could sue to challenge allegedly lax immigration policies that lead to overcrowded classrooms.”

Most emphatically, the court rejected the argument that the ADF had standing because it had to spend money and time on fighting mifepristone “to the detriment of other spending priorities.” The Court rightly saw through this claim too: It would allow plaintiffs to manufacture standing just by suing.

None of that means, however, that the fight against mifepristone is over. Other plaintiffs might try to establish standing. In the district court, Judge Matthew Kacsmaryk has already ruled that three conservative states could join the case as plaintiffs. The Supreme Court did not allow the states to join the litigation in FDA v. Alliance for Hippocratic Medicine, but the plaintiffs could bring their own claims before Kacsmaryk. Though they already ban abortion, these conservative jurisdictions argue that their residents are receiving pills in the mail, and states will bear the costs of emergency care for patients suffering from complications after taking mifepristone. The Supreme Court might find issues with these standing arguments, too, but the fact remains that we will likely see similar arguments about mifepristone raised again.

Claims involving the Comstock Act are also likely to come back to the Supreme Court whatever happens to the states’ challenge. Conservatives close to former President Donald Trump are proposing plans to enforce the Comstock Act as a de facto ban on abortions nationwide. The Comstock Act has not been interpreted by the courts as a no-exceptions ban on abortion since the 1930s. Conservatives, however, argue the Comstock Act is a ban on mailing any abortion-related items. Because virtually every abortion involves an item put in the mail, including not just pills but medical equipment, conservatives argue that the Comstock Act amounts to a national ban they could never convince voters to support.

The Supreme Court in FDA v. Alliance for Hippocratic Medicine avoided discussing the Comstock Act. The politics of that move make sense. Justices Samuel Alito and Clarence Thomas raised the Comstock Act at oral arguments in the abortion pill case, but there likely wasn’t a majority ready to tackle the question yet. 

Moreover, even two justices mentioning Comstock in a ruling during an election year would have been politically provocative. Trump has avoided having to answer questions about what he would do about the Comstock Act, promising to issue statements on the topic and never delivering. Had Alito and Thomas identified the Comstock Act as an abortion ban, the press — and the Biden campaign — would likely have pressed Trump to clarify his position.

The court, in this way, let Trump off the hook. Voters who already know little about the Comstock Act may not hear much more about the law and its potential enforcement before the election. And if Trump prevails and his Department of Justice begins treating the Comstock Act as an abortion ban, defendants like drug companies or doctors would certainly fight back and litigate all the way to the Supreme Court. The court would then be forced to address Comstock questions that the justices dodged in this case.

Leaving the status quo on mifepristone for the time being may help Trump, too. It reinforces his narrative that abortion is a states’ rights issue now and that the federal courts will not have as much to say on the matter — a stance that makes him seem less extreme, and more palatable to voters ahead of the 2024 election.

So this case is no major win for abortion rights in the long term, even if Thursday’s decision upholds access to mifepristone for now. The court isn’t even done with abortion this term, with another major case on emergency access to the procedure, set to be decided later this month.

This round of the war on mifepristone ended in a unanimous ruling because conservative judges have long been suspicious of expansive arguments for standing — and because the standing arguments raised by these plaintiffs were comically bad, regardless of a judge’s ideological priors. But the conflict over access to the pills will rage on, and the Supreme Court will remain at the center of it.

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