The justices’ apparent skepticism demonstrates how weak the plaintiffs’ argument is. Erin Hawley, a lawyer with the far-right antifeminist litigation firm Alliance Defending Freedom and the wife of conservative US Senator Josh Hawley, normally receives a considerably warmer welcome at One First Street. But in Tuesday’s oral arguments in Alliance for Hippocratic Medicine v. FDA, a case seeking to challenge FDA approval of the abortion medicine mifepristone and specifically to overturn regulatory modifications that made the drug more available, she was on the defense.
All three Democratic appointees, as well as the Republican justices Gorsuch, Kavanaugh, and Roberts, expressed doubts about her clients’ legal standing. Amy Coney Barrett, a Trump appointee renowned for her maximalist religious beliefs, struggled to help Hawley create a compelling merits case for restricting access to medicine. During their question time, far-right extremists Samuel Alito and Clarence Thomas expressed their support for the Comstock Act, a long-obscured and forgotten 1871 provision that some anti-choice lawyers believe could potentially ban abortion statewide through an executive order.
The Alliance for Hippocratic Medicine has always been an unusual case, with a journey to court defined by debate, intense argument, and drastically lower legal requirements. For starters, the plaintiffs, a group of anti-abortion doctors who make outrageous and factually disproven assertions about the alleged dangers of mifepristone, chose their own trial judge. They filed their complaint in the northern district of Texas, a federal court in Amarillo with only one judge: Matthew Kacsmaryk, a young Trump nominee with a history of militant anti-choice activism who has gained notoriety for his extraordinary deference to anti-abortion litigants.
Kacsmaryk ignored the fact that the physician plaintiffs could not demonstrate any injury that would entitle them to sue and promptly issued a national injunction revoking FDA approval of the drug—an unprecedented judicial intervention that threatened to end access to a medication used in more than half of US abortions.
Above him, the far-right fifth circuit, in an opinion authored by aspiring Supreme Court nominee James Ho, upheld the FDA’s initial approval of the drug but ruled that interventions in 2016 and 2021 that made it more accessible were illegal, making the pills significantly more difficult to obtain in a post-Dobbs era. In his opinion, Ho not only avoided the case’s initial standing issues but also made bizarre arguments justifying the right of virtually anyone to sue over abortion medication, including for what he called “aesthetic injuries,” that is, the harm allegedly caused by abortion medication to people who are denied the opportunity to look at more babies.
The FDA’s post-2016 initiatives to lessen access obstacles to mifepristone were allegedly at issue before the Supreme Court. In principle, this should have piqued the interest of the revanchist Supreme Court, which has recently taken up legal challenges aimed at limiting abortion access, curtailing civil rights, and weakening federal agencies such as the FDA. However, with the court’s approval at an all-time low in the aftermath of Dobbs and with a looming November election determined in large part by public outrage over women’s rights, even the court’s most ardent opponents of abortion access and federal regulation found themselves with little appetite to allow plaintiffs to limit access to a safe and popular drug nationally.
And so, on Tuesday, the Supreme Court rediscovered an area of the law that it had previously ignored: standing doctrine. The district court and the fifth circuit ignored the tiny, inconvenient fact that the plaintiffs have suffered no injury and have no legal right to suit, but it became a major point of contention during the oral arguments at the Supreme Court.
Elena Kagan observed that the plaintiff’s theory of standing was “highly probabilistic,” implying that it was based on a series of hypotheticals and contingencies concerning prospective harms that could occur, somehow, at some undetermined moment in the future, to someone, somewhere.
Ketanji Brown Jackson asked some of her most pointed questions since joining the court—a high bar—about the asymmetry between the plaintiff’s claimed injury of hypothetical future conscience harm and their proposed remedy for that injury—a nationwide restriction on how all American women can use the drug. Jackson was joined in this sentiment by Trump appointee Neil Gorsuch, her sometimes odd-couple friend, who asked the anti-abortion camp why they had filed such a broad petition rather than a narrow one, in a tone that could only be described as scolding.
Roberts indicated a preoccupation with the standing matter; even Kavanaugh, a justice with limited ability to make a point, offered a question that appeared to be targeted at obtaining a fact of established law on the record: don’t these physicians already have a legal right to refuse to perform abortions? Hawley responded in the positive.
The court appears poised to dismiss the case on standing grounds. If the opinion is written by a conservative, it will most likely serve as an instruction manual, outlining the type of case that the conservative legal movement could bring to successfully overturn the FDA’s approval of mifepristone. a future case, but not this one.
However, oral arguments on Tuesday made headlines because they revealed for the first time that the anti-choice movement’s chosen plan for a nationwide abortion ban has supporters on the Supreme Court. The case heard on Tuesday was not supposed to be about the federal Comstock Act, a long-unenforced rule from the Victorian era that prohibited transmitting contraception or abortion devices through the mail or dealing them in interstate commerce. However, both Samuel Alito and Clarence Thomas brought up the statute, which the plaintiffs cited in their pleadings and was the subject of multiple amici curiae briefs submitted in the case.
Since Dobbs, anti-abortion litigants have advanced a novel, never-before-enforced theory that a broad interpretation of the Comstock Act could functionally prohibit all abortions nationwide, several types of birth control, and potentially implements used in other types of routine gynecological care, such as speculums and curettes. Alito indicated with his questions that he believed the act applied to the FDA, which had failed to follow its prohibitions when it approved the drug; Thomas argued that mifepristone’s maker had violated it by marketing and advertising abortion drugs.
These interpretations are unlikely to be the controlling opinion in this lawsuit. However, they indicate how this court may rule under a future Republican president. After all, Republicans do not need to take control of Congress to enact the Comstock Act, which would prohibit abortions across the country. They only need the White House.
