On Thursday, the US supreme court unanimously ruled that the Alliance for Hippocratic Medicine – a sock-puppet group of fanatically anti-choice doctors and busybodies – lacked standing to sue in the group’s challenge to the Food and Drug Administration’s approval of mifepristone, the drug that is now used in more than 60% of American abortions. The court’s decision may seem like the end of this battle. It’s only the beginning.
The lawsuit in question had originally emerged from Amarillo, Texas, in a federal court that has become a destination for anti-choice litigants because Matthew Kacsmaryk, a Trump appointee and the sole judge hearing federal civil cases in the district, is a militant anti-abortion activist. Kacsmaryk made news when he used to case as a pretext to issue a nationwide injunction revoking FDA approval of the drug. The fifth circuit court, a radically rightwing appeals panel which has jurisdiction over Texas and which has repeatedly sought to push the supreme court to new heights of anti-abortion extremism, upheld most of Kacsmaryk’s ruling, but limited the case to challenges that the FDA made in 2016 and 2021 to make mifepristone more easily available.
The case that reached the supreme court was about whether the drug, which has been found to be safer than Tylenol, could be used between seven and 10 weeks of pregnancy, and – crucially – whether it could be prescribed by telehealth and sent through the mail.
There was only one problem: the plaintiffs had no legal standing whatsoever. Their merits case was bad enough – they relied on obscure, since-retracted studies to claim that mifepristone was dangerous. But their theory of how they were harmed by the drug’s availability – even though they neither took nor prescribed it – was fanciful, heavily contingent and ultimately too far-fetched even for this very enthusiastically anti-choice supreme court. Brett Kavanaugh, the Trump-appointed justice best known for being accused of sexual assault and braying that he likes beer, authored the opinion that maintained the status quo with regard to the drug’s availability. Mifepristone is still banned in states with abortion bans. But it has not been made more difficult to get in states without them.
There’s a reason why anti-choice groups are targeting mifepristone. In the more than two decades since the drug was first approved by the FDA, it has revolutionized abortion care. Whereas previously, abortions were largely surgical procedures, mifepristone was the first safe and effective method for terminating a pregnancy by ingesting a pill. It allowed abortions to be conducted at a patient’s convenience, and in the privacy of her home.
A slim majority of abortions in the US were already conducted with mifepristone before Dobbs v Jackson Women’s Health Organization, but in the years since Roe’s reversal, the use of the pills has risen even further: now, 63% of abortions are performed using mifepristone. And because of the FDA’s 2021 ruling allowing the drug to be administered via telemedicine – one of the modes of access that the AHM suit was seeking to end – not all of those mifepristone abortions are happening in states where abortion is legal.
That’s because, since Dobbs, providers in Democratic-controlled states – particularly those that have shield laws that protect providers from out-of-state liability – have been prescribing the pills to women in Republican-controlled states via telemedicine, sending abortion pills into those ban states via the mail. Some estimates posit that more than 8,000 abortion seekers in ban states receive the pills this way every month – safely and secretly ending their pregnancies in defiance of local law.
Because mifepristone is safe and effective – because it is easy to use, easy to access and difficult to track – the anti-choice movement will not stop looking for ways to restrict or ban it. And despite the justices’ ruling in this latest case, it is likely that the supreme court will look to help them. This particular case isn’t even dead: back at the district court, Judge Kacsmaryk has already allowed three states – Missouri, Kansas and Idaho – to join as plaintiffs, and their claims will go forward. It is likely, too, that the anti-choice lawyers bringing the suit will soon find plaintiffs with more plausible standing claims.
When those plaintiffs reach the supreme court, there is every indication that they will find a sympathetic audience for their merits claims in the court’s conservative supermajority. As Mary Ziegler, a law professor and historian of the anti-abortion movement, put it, “One could read parts of this opinion as creating a roadmap [for] future plaintiffs who do want to establish standing.”
We already know that this court wants to ban abortion nationwide, and to limit abortion access as much as possible in the meantime. And at least some of the justices will all but openly work in tandem with the conservative legal movement to find the right opportunity to do it.
In the meantime, the choice to remand the case for lack of standing may be meant to give the court a little bit of much-needed good PR. As the nation careens toward the November elections, a contest in which Americans’ anger over Dobbs is expected to play a crucial part, the court is reeling from a series of cascading ethics scandals. Their approval is in the toilet; their justices keep getting caught accepting lavish vacations from billionaires, or seemingly endorsing coups with cryptic flag displays outside their mansions.
Later this term, the justices are expected to partially nullify a federal law creating minimum standards of care in emergency rooms, so as to allow states to ban life- and health-saving abortions. That case, over the federal statute called Emergency Medical Treatment and Active Labor Act, is likely to cost hundreds or thousands of Americans their lives.
In these circumstances, the justices might not mind taking some of the heat off themselves by kicking the can down the road another year or two before they restrict mifepristone. After all, it’s not like they won’t get another chance.
-
Moira Donegan is a Guardian US columnist