It is a testament to how weak the plaintiffs’ case is that the justices seemed so skeptical. Erin Hawley, a lawyer for the far-right antifeminist litigation shop Alliance Defending Freedom and the spouse of the conservative US senator Josh Hawley, usually gets a much warmer reception at One First Street. But in Tuesday’s oral arguments in Alliance for Hippocratic Medicine v FDA – a lawsuit which seeks to challenge FDA approval of the abortion drug mifepristone, and specifically to reverse regulatory changes that made the drug more easily accessible – she was on the defensive.
The three Democratic appointees, along with the Republican justices Gorsuch, Kavanaugh and Roberts, all signaled at least some skepticism of her clients’ claims to legal standing. Amy Coney Barrett, the Trump appointee known for her maximalist religious commitments, struggled to help Hawley establish a convincing merits case to restrict access to the drug. And the far-right extremists Samuel Alito and Clarence Thomas spent their question time signalling their support for the Comstock Act, a long-obscure and once-forgotten 1871 statute that some anti-choice lawyers say could be used to ban abortion nationwide by executive order.
Alliance for Hippocratic Medicine has always been a strange case, one whose path to the court was marked by controversy, strained argument and dramatically lowered legal standards. For one thing, the plaintiffs, a group of anti-abortion doctors who make outlandish and empirically disproven claims about the supposed dangers of mifepristone, hand-picked their own trial judge. They filed their lawsuit in the northern district of Texas, a federal court in Amarillo that has only one judge: Matthew Kacsmaryk, a young Trump appointee with a history of militant anti-choice activism who has become famous for his extreme deference to anti-abortion litigants.
Kacsmaryk ignored the fact that the physician plaintiffs could not show 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 that is used in more than half of US abortions.
Above him, the far-right fifth circuit, in an opinion authored by the aspiring supreme court nominee James Ho, upheld the FDA’s initial approval of the drug but ruled that interventions in 2016 and 2021 that had made it more accessible were illegal, a move that would have made the pills dramatically more difficult to get in a post-Dobbs world. In his opinion, Ho not only bypassed the case’s initial standing problems, but 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 done by abortion medication to people who are deprived of the opportunity to look at more babies.
At the supreme court, it was the FDA’s post-2016 moves to lower barriers of access to mifepristone that were supposedly at issue. And in theory, this should have been catnip to the revanchist supreme court, which has in recent years enthusiastically taken up legal challenges meant to erode abortion access, curtail civil rights, and weaken federal agencies like the FDA. But with the court’s approval at an all-time low in the wake of Dobbs, and with a looming November election to be determined in a large part by public outrage over women’s rights, even the court’s most enthusiastic enemies of abortion access and federal regulation found themselves with limited appetite to allow plaintiffs to limit access to a safe and popular drug nationwide.
And so it was that on Tuesday, the supreme court rediscovered an area of the law that it has recently been content to ignore: standing doctrine. The minor, inconvenient fact that the plaintiffs have experienced no injury and have no legal right to sue had been hand-waved away in the district court and at the fifth circuit, but it became an issue of prolonged attention in the oral arguments at the supreme court.
Elena Kagan noted that the plaintiff’s theory of standing was “highly probabilistic”, meaning that it relied on a series of hypotheticals and contingencies about potential harms that might happen, somehow, at some indeterminate point in the future, to someone, somewhere.
Ketanji Brown Jackson issued some of her most pointed questions since joining the court – a high bar – over the asymmetry between the plaintiff’s stated injury of a hypothetical future conscience harm and their proposed remedy for that injury – a nationwide restriction on the way all American women can use the drug. Jackson was joined in this line of thought by the Trump appointee Neil Gorsuch, her sometimes odd-couple ally, who asked the anti-abortion camp why they had filed such a broad petition, instead of a narrow one, in a tone I can only describe as scolding.
Roberts signaled a preoccupation with the standing question; even Kavanaugh, a justice with little skill in making a point, asked a question that seemed aimed at getting a fact of established law on the record: don’t these physicians already have a legal right to decline to perform abortions? Hawley answered in the affirmative.
The court seems poised to throw out the case on standing grounds; if the opinion is written by a conservative, it will likely operate as something of an instruction manual, describing the kind of case that the conservative legal movement could bring that would successfully overturn the FDA’s approval of mifepristone. A future case – just not this one.
But oral arguments on Tuesday did make news: they signaled the first time that the anti-choice movement’s preferred strategy for banning abortion nationwide has cheerleaders on the supreme court. The case that the court heard on Tuesday was specifically not supposed to concern the federal Comstock Act, a long-unenforced law left over from the Victorian era that imposed a ban on sending contraception or abortion implements through the mail or trading them via interstate commerce. But both Samuel Alito and Clarence Thomas brought up the act, which plaintiffs mentioned in their briefs and which was the focus of several amici curiae who submitted in the case.
Since Dobbs, anti-abortion litigants have been advancing a novel, never-before-enforced idea that the Comstock Act could be interpreted broadly to functionally ban all abortions nationwide – as well as several kinds of birth control and possibly implements that are also used in other kinds of routine gynecological care, like speculums and curettes. Alito signaled with his questions that he felt the act applied to the FDA, who had failed to heed its prohibitions when they approved the drug; Thomas suggested that mifepristone’s manufacturer had violated it when selling and advertising abortion medication.
These interpretations will likely not be controlling opinion in this lawsuit. But they signal how this court may rule under a future Republican administration. After all, if Republicans want to enforce the Comstock Act as a nationwide total abortion ban, they don’t need to win control of Congress. All they need is the White House.
Moira Donegan is a Guardian US columnist