The pro-choice movement has good reason to be concerned about the Supreme Court hearing.
After all, this was the same high court that reversed 50 years of precedent in Roe v. Wade with a 6-3 conservative majority.
Two years later, the same court was taking a look at an increasingly popular method of medical abortion using the drug mifepristone.
Who could stop the justices if they wanted to outlaw these medications, which are especially vital in areas where abortion is illegal or heavily restricted?
With a single decision, the court might swing the balance in favor of the pro-life movement by cutting off a lifeline for millions of women.
But that is not how things turned out.
According to the audio of Tuesday’s oral arguments, most justices across the ideological spectrum are opposed to making these medicines illegal.
With the exception of Sam Alito and Clarence Thomas, leaders of the anti-Roe camp, the justices have made it clear that they do not want to get involved in this fight.
More than two decades after the FDA approved mifepristone as safe and effective, it appears that the medicine will continue to be readily available.
When Ketanji Brown Jackson and Neil Gorsuch reach a consensus, it serves as the judicial equivalent of a green light flashing.
Abortion has been a problematic issue for Republicans in the post-Roe period. Democrats have won multiple special elections by fielding candidates who focus aggressively on the subject. On Tuesday, one such Democrat successfully flipped a Republican seat in the Alabama House.
During my Mar-a-Lago interview with Donald Trump, he asserted that Republicans who adopt a strict stance on abortion, such as rejecting exceptions for rape, incest, and mother’s life, are bound to face failure. Upon accepting a restriction on abortions beyond 16 weeks of pregnancy, eventually reducing it to 15 weeks, he made a profound statement that resonated with me: “You must follow your heart.” However, it’s also crucial to secure an election.
Given that 60% of all abortions in America now use mifepristone, the Supreme Court case has significant ramifications.
The skeptical justices expressed concern about the impact on federal regulation if they replaced their views on complex issues managed by agencies such as the Food and Drug Administration.
Jackson stated that there is a “significant mismatch” between the statements made by the anti-abortion doctors and their lawsuit “seeking an order preventing anyone from having access to these drugs at all.”
Gorsuch went on to say: “This case seems a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule or any other federal government action.”
The advantage of these pills is that patients can have them mailed to their homes, even in states with severe legislation.
If the Supreme Court upholds the appellate verdict, patients will have to get the medicines in person and can only use them for seven weeks.
The majority of the justices appeared to agree on the essential point of standing, that is, eligibility to suit. They questioned both parties about whether the plaintiffs had such standing.
If the top court finds they don’t, they don’t have to address any of the more contentious issues and can dismiss the case.
However, this may only provide a limited reprieve. The justices will no longer have an exit ramp if someone with clear standing files the next lawsuit.
As long as there are attorneys and strong moral feelings on both sides, this type of litigation will continue, leaving a legacy of a new and more powerful abortion environment.
