For this Supreme Court to reject abortion restrictions, the argument has to be pretty bad.
“That it?” Justice Amy Coney Barrett cut in tersely as anti-abortion group lawyer Erin Hawley (yes, that Hawley) enumerated the supposed harms to a group of doctors from the Food and Drug Administration lifting restrictions on abortion drug mifepristone.
Hawley on Tuesday was at times buried by a bipartisan dogpile as the likes of Chief Justice John Roberts, Neil Gorsuch, Brett Kavanaugh, Barrett and even Clarence Thomas joined the liberals in questioning the group’s standing to bring the challenge and the nationwide restrictions it’s seeking.
Justice Samuel Alito, one of the most doggedly devoted members of the bench to reverse engineering even doily-like arguments into his preferred outcome, tried valiantly to put a gloss on the anti-abortion case.
Is the FDA “infallible?” he challenged the government. Isn’t it “obvious” that lifting multiple restrictions at once may have a different effect in combination, he mused, parroting the anti-abortion group’s argument. He sneered that the manufacturer of branded mifepristone’s injury is just monetary — a refreshingly dismissive take on corporate interest from a right-wing judge.
“So your argument is it doesn’t matter if FDA flagrantly violated the law, it didn’t do what it should have done, it endangered the health of women, it’s just too bad, nobody can sue in court?” he asked U.S. Solicitor General Elizabeth Prelogar.
But the fight went out of Alito as the arguments went on and it became clear that his peers were, at the least, highly suspect of the legal underpinnings of the challenge.
The other right-wing justices too, initially eager to at least throw a bone to the anti-abortion movement, had largely abandoned that posture by the time Hawley took the stand.
See here for the previous update. I’m just going to post a bunch of links at the end of this, but the one other piece I want to highlight is this one, in which we talk about what might be next.
There are always a couple of tells when the most conservative Supreme Court in more than a century finds itself adjudicating a truly mortifying and meritless case. One is that it’s coming up by way of the U.S. Court of Appeals for the 5th Circuit, a court that so consistently shovels its worst constitutional garbage upward that the high court conservatives are often forced to reluctantly lob it back. Another tell is when the facts of the case are so laugh-out-loud insane that even conservative justices can’t bring themselves to adopt them or the underpinning legal reasoning with a straight face. There’s yet a third tell: when the conservative justices start injecting a bunch of nonsense and randomized pet peeves into oral argument to distract from how embarrassing it would be to discuss the merits of the actual case.
All three tells were present Tuesday morning, when the court heard FDA v. Alliance for Hippocratic Medicine, a challenge to the current medication abortion regime nationwide. This case is about a handful of physicians seeking to wield their “conscience objections” to abortion as a cudgel against everyone’s access to safe reproductive care throughout the country. So, it was heartening to see that the majority of the Supreme Court doesn’t have the conscience to take it seriously. It was harrowing, however, to hear at least two justices embrace the plaintiffs’ foundational theory: that a long-defunct federal law already bans medication abortion, and maybe procedural abortion as well—and that the courts can revive this ban once they get their hands on the right case.
[…]
Alito and Justice Clarence Thomas are never ones to let an embarrassment of a lawsuit go to waste. And they were openly eager to embrace the chilling argument at the heart of ADF’s case: the notion that the Comstock Act of 1873 prohibits the distribution of abortion pills and perhaps even equipment used for procedural abortions. Under this theory, abortion is already a criminal offense under federal law, and every abortion provider in the country may be prosecuted and imprisoned immediately. Conservative groups like the Heritage Foundation are already urging Trump to issue an executive order on Day 1 banning medication abortion. Republican lawyers are preparing to use the Comstock Act to prohibit all abortions, not just pills. This reading of the zombie relic is so broad that a Justice Department and judiciary hostile enough to reproductive freedom could contort it to make all abortion care a felony.
Predictably on Tuesday, and with a case built of vapors to work with, Alito and Thomas went full Comstock. Alito scolded the FDA for letting providers mail abortion pills despite the existence of the law. “This is a prominent provision,” the justice told Prelogar. “It’s not some obscure subsection of a complicated, obscure law. They knew about it. Everybody in this field knew about it.” Thomas warned Ellsworth that her client, the maker of mifepristone, lacked a “safe harbor” from prosecution over Comstock. “It’s fairly broad, and it specifically covers drugs such as yours,” he told her. (That claim is very much in dispute.) Alito and Thomas know they will likely lose this case, so they’re preparing for the next one. Maybe Trump will win and commence Comstock prosecutions. Maybe Kacsmaryk will issue a new ban on mifepristone at the behest of red states, as he is currently threatening to do. Either way, Comstock is racing toward the Supreme Court. And two justices have already aligned themselves with a sweeping interpretation of its puritanical prohibitions.
The FDA looks poised to win this silly case at the Supreme Court in June, but we cannot let the case’s silliness obscure all the future damage it tees up—to the practice of medicine, to women’s health, and to the credibility of a Supreme Court that once cared about credibility. Whenever a door closes on the worst MAGA toxins at this court, an Overton window opens to something so much worse. Health care professionals, biopharma companies, and reproductive rights advocates can cheer the probable outcome of Alliance for Hippocratic Medicine. But they can spare only a moment’s rest because Thomas and Alito, with the help of bad actors like ADF and Kacsmaryk, are already bringing the next battle to their doorstep.
As that last link notes, it ain’t over till it’s over. And before you can draw a breath, it will be time for the EMTALA appeal. Gird yourselves. NBC News, SCOTUSblog, Mother Jones, and The 19th have more.