After extending its self-imposed deadline from Wednesday to today, the U.S. Supreme Court finally weighed in on the fight to limit access to mifepristone, a pill used in more than half of all abortions. The Court stayed the ruling of the Fifth Circuit Court of Appeals and preserved existing access to the drug as litigation continues in the lower courts. This ruling came on the heels of those from Texas District Court Judge Matthew Kacsmaryk and the Fifth Circuit, both of which not only second-guessed regulators’ careful parsing of scientific evidence, but also hinted that an anti-vice law from the Victorian era, the Comstock Act, had created a de facto nationwide ban on abortion.
The Court stepped back in this latest order, preserving the pre-lawsuit status quo when it comes to mifepristone. But we can read only so much into the Court’s decision. For 50 years, anti-abortion-rights groups have shown that they are willing to play the long game, and with a Court as conservative as this one, they have no reason to cease their efforts.
The case began when the Alliance for Hippocratic Medicine, an anti-abortion-rights group represented by the Alliance Defending Freedom, a powerhouse of the Christian right, argued that the Food and Drug Administration lacked the authority to approve mifepristone back in 2000—and that the agency had no power to lift restrictions on access to the drug in the years since. In a ruling seeded with anti-abortion rhetoric and studies, Judge Kacsmaryk issued an unprecedented ruling, blocking approval of mifepristone and suggesting that the Comstock Act banned the mailing of any drug or device intended or adapted for abortion.
The Fifth Circuit weighed in less than a week later in an opinion that could be considered reasonable only in comparison to Kacsmaryk’s mind-bender. The appellate court’s order would have turned back the clock to 2016, when access to mifepristone was possible only after multiple doctor visits, and when telehealth abortions were off the table. Like Kacsmaryk, the Fifth Circuit seemed open both to arguments about the applicability of the Comstock Act and to extremely broad interpretations of the law. Anti-abortion-rights activists had reason to feel optimistic about how the Supreme Court would react when presented with these plaintiffs’ case. The conservative justices have a track record of hostility to administrative agencies such as the FDA and have questioned the constitutionality of their actions (and even of their basic structure). And, of course, the same conservative justices last year reversed Roe v. Wade in an opinion that scorned the views of those who disagreed.
Abortion-rights opponents’ optimism about the abortion-pill cases may have been unjustified. By a 7–2 vote, the Court decided to issue a full stay. This means that, as litigation continues in the lower courts, Americans will continue to have the same access to mifepristone they had before this lawsuit began. Only Justices Samuel Alito and Clarence Thomas dissented, and not even Alito (the only dissenting justice who wrote anything) expressed any support for the plaintiffs’ arguments. Rather than discuss the plaintiffs’ standing or the merits of their case, Alito preferred to complain that the FDA had not shown that it would have been injured had the Fifth Circuit ruling gone into effect, because regulators would likely have used their discretion not to go after unapproved uses of mifepristone.
This was an archetypal shadow-docket ruling: short and cryptic, while the Court has yet to address the merits of the case. But in evaluating such a stay, the Court considers whether the plaintiffs are likely to win. In that respect, a 7–2 loss is hardly good news for the plaintiffs. Right now, it seems that most of the conservative justices on this Court have their doubts.
Abortion-rights supporters can draw an optimistic reading from this stay. The Court’s reputation sustained major damage after last summer’s decision in Dobbs v. Jackson Women’s Health Organization. Since then, the abortion conflict has escalated in the states and in the federal courts. One has to wonder whether the justices are sick of wading into this controversy. In June, Alito vowed to return the abortion question to the “people’s elected representatives,” but it’s reasonable to question whether the aftermath of Dobbs may have given some of them second thoughts.
But we cannot read too much into what the Court just did, because there were deep problems with the plaintiffs’ case. It was hard to argue with a straight face that these plaintiffs had standing to sue. In addition, this lawsuit came a full 23 years after the FDA approved mifepristone—a delay that made even the ultraconservative Fifth Circuit ask questions about the timeliness of the lawsuit.
If the Supreme Court ultimately sides with the FDA, the pessimistic take for abortion-rights supporters is that this was simply a rotten case. If it fails, and the FDA prevails, other anti-abortion-rights cases will soon be filed with the hope of reaching the Supreme Court. Kacsmaryk and the Fifth Circuit prepared the way for a reading of the Comstock Act as a nationwide abortion ban, and abortion-rights opponents will file other suits to take advantage. Already, Idaho passed a law limiting interstate travel for an abortion—the first such state restriction and part of a strategy that, if successful, could empower conservative states to limit the ability of progressive ones to treat patients from elsewhere.
The Supreme Court has not become any less conservative, or any less hostile to abortion. This order simply suggests that when it comes to undermining abortion, the conservative justices still know how to pick their cases.