The Supreme Court announced Wednesday that it will hear arguments on the accessibility of the abortion drug mifepristone in the biggest abortion case since Dobbs.
The case stems from a widely panned decision handed down by notorious Donald Trump appointee U.S. District Judge Matthew Kacsmaryk, who last April suspended the Food and Drug Administration’s 20-plus-year-old initial approval of the drug.
Back in August, a Fifth Circuit Court of Appeals panel reluctantly ruled that the initial approval was too old to challenge, but gave the greenlight to reimpose restrictions — including a shorter on-label gestational window, requiring multiple in-person visits to providers, barring the pills from being mailed — that the agency had lifted since 2016, finding them to be unnecessarily onerous.
The Biden administration and a drug manufacturer asked the Supreme Court to review the 5th Circuit ruling. In the meantime, the high court had stayed the lower court orders, keeping mifepristone available as usual until the case is resolved (Justices Samuel Alito and Clarence Thomas dissented from granting the stay).
In a possible sign of where this is headed, the Supreme Court also on Wednesday rejected a related cross-petition from the anti-abortion doctors, which asked it to revisit that initial approval.
That rejection coupled with the serious procedural issues with the case, may, depending on the bloodlust of the right-wing Supreme Court justices, keep the case from being a direct attack on abortion access. It’s far from clear that the anti-abortion doctors who brought the initial lawsuit had standing to do so. Their claimed injuries are of a hypothetical nature, including that some women might experience adverse reactions from the (very safe) drug and need treatment in their emergency rooms. The doctors have argued that they would then have to spend limited time and resources on the floods of women admitted (which have not yet materialized in the two decades the drug has been commonly taken) and could be sued for malpractice or otherwise open to liability.
There are also timeliness and exhaustion questions, concerning whether the groups brought their complaints soon enough and whether they went through the proper agency channels first. The high court might be more than happy to home in on the procedural issues and sidestep another (highly electorally motivating) abortion bombshell. Pharmaceutical companies, advocates and experts have also warned that upending the FDA’s approval of mifepristone could open the floodgates to an enormous tranche of drugs and medical devices being challenged too.
See here, here, here, and here for some background. I’m going to link to a bunch of other articles about this, but you should start with Dahlia Lithwick and Mark Joseph Stern.
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.
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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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 Handmaids Tale.
Go read the rest, and read Law Dork, The 19th, and Mother Jones. And make sure you remember, and that everyone you know remembers, that all this is the result of Donald Trump being President, and of the bottomless cruelty and misogyny of the anti-abortion zealots, who are nowhere near finished with what they want to do. Our next chance to do something about that is eleven months from now.