Comment: Ruling on abortion pill access may be short-lived

Despite a unanimous decision upholding access to mifepristone, it left open avenues for challenge.

By Jesse Wegman / The New York Times

Rarely has a straightforward 9-0 decision at the Supreme Court felt as unsettling as it did on Thursday.

The justices’ unanimous ruling, in FDA v. Alliance for Hippocratic Medicine, rejected a challenge to the most commonly used abortion pill, but it did so only on procedural grounds, without considering the merits of the lawsuit. That means another challenge to the drug, mifepristone, will probably reach the court before long. Based on the right-wing supermajority’s open hostility to reproductive rights, there’s good reason to worry.

For now, at least, and purely as a matter of law, the justices got it right, which these days is saying something.

The case decided on Thursday was brought by a group of associations and doctors who oppose abortion and argued that mifepristone is unsafe for the women who use it. They wanted the courts to overturn recently instituted Food and Drug Administration rules that made mifepristone easier to get and use, so they maneuvered their case in front of a sympathetic federal judge in Texas, Matthew Kacsmaryk, who has publicly opposed abortion and ruled in the doctors’ favor. The 5th U.S. Circuit Court of Appeals, which has somehow figured out how to out-radical this Supreme Court, upheld much of Kacsmaryk’s decision.

The justices tossed the case for a simple reason: The plaintiffs could not show that they had personally suffered harm from the FDA’s approval of mifepristone. This showing is a fundamental requirement of standing, the judicial doctrine that outlines who is qualified to bring a lawsuit.

The court quoted former Justice Antonin Scalia’s description of this requirement as “What’s it to you?” In this case, it’s nothing, as Justice Brett Kavanaugh pointed out in the court’s opinion. Because they oppose abortion, the doctors neither use nor prescribe mifepristone, and the FDA hasn’t required them to do or not do anything. The doctors could not even show a single instance in which they were forced to perform an abortion or even provide abortion-related services against their will.

The plaintiffs’ moral opposition to abortion may be genuine, the court conceded, but they are already protected by federal and state laws that allow them to refuse to participate in any procedure that goes against their conscience. In that light, a “desire to make a drug less available for others does not establish standing to sue,” Kavanaugh wrote.

This is obviously correct. And yet even a plaintiff who could meet the standing requirement to challenge mifepristone on the grounds of safety should lose, because the science is not in dispute.

The FDA’s approval of mifepristone, in 2000, was based on reams of research that found it to be effective and safe. It has since become the go-to abortion pill, used for a majority of abortions in America and boasting a complication rate lower than that of other widely prescribed drugs.

The challengers sought to offset this mountain of evidence by presenting a few recent studies purporting to show that the use of mifepristone has led to more emergency-room visits and complications. In the trial court, Kacsmaryk based his decision in part on these studies. But the journal that published those studies retracted them this year after discovering that their authors had hidden their affiliations with anti-abortion groups. The research itself was also poorly designed, the journal said, and the conclusions were based on “unjustified or incorrect factual assumptions, material errors in the authors’ analysis of the data, and misleading presentations of the data.”

Of course, this dispute isn’t about science or law; it’s about religion and politics. That’s why the court’s right-wing supermajority, which has proved to be as solicitous of religious claims as it is hostile to abortion rights and executive agencies, was willing to hear it.

It’s also why Justice Clarence Thomas felt free to inject his personal politics into an otherwise mundane concurrence to Thursday’s ruling.

“Just as abortionists lack standing to assert the rights of their clients, doctors who oppose abortion cannot vicariously assert the rights of their patients,” Thomas wrote. Note the discrepancy between “doctors who oppose abortion” on the one hand and “abortionists” on the other; perhaps the first time that epithet, so laced with sneering innuendo, has appeared in a Supreme Court opinion in a justice’s own voice. Doctors can do many things; abortionists can do only one. Also note the differing use of the terms “patients” and “clients”; Thomas is saying, in essence, that the provision of basic health-care services that he objects to is not medicine but business.

These are the sorts of smoke signals that energize abortion opponents, who were emboldened by the court’s reversal of Roe v. Wade two years ago, and who are on the warpath to end all legal abortion in America. From the Comstock Act, a 19th-century anti-vice law that activists are trying to resurrect; to “heartbeat bills” that ban abortion after six weeks; to fetal personhood laws and efforts to restrict access to in vitro fertilization; to attacks on birth control pills, Republican lawmakers in Congress and the states are working to impose certain people’s religious values over most people’s fundamental rights.

And that’s why, if you care about a woman’s right to control what happens in her own body, you should be very concerned about the next mifepristone case that reaches the Supreme Court. It may well come from any of three states, Idaho, Kansas and Missouri, that attempted but failed to join the current lawsuit. Immediately after Thursday’s ruling was announced, the attorneys general in Kansas and Missouri promised to continue the fight.

A majority of Americans has for decades supported abortion rights, sometimes by overwhelming margins. It’s no surprise that one result of overturning Roe v. Wade has been a remarkable string of electoral victories for candidates who support abortion rights and for related ballot measures, in red and blue states alike. The people have been speaking clearly for two years, and yet anti-abortion lawmakers, who are increasingly also anti-democratic lawmakers, have been finding sneaky ways to subvert that voice.

In Ohio, for example, legislators have sought to make it harder for voters to put abortion-rights measures on the ballot. Other states have tried to prosecute women who travel to other states to get an abortion.

For the time being, access to the abortion pill is preserved. But make no mistake: This was a narrow, procedural win for reproductive rights. In the bigger picture, the anti-abortion forces feel the wind is at their backs. It is up to the majority of Americans who support abortion rights to turn out at the polls this fall, and every year, to demonstrate what protecting equality and bodily autonomy really means.

This article originally appeared in The New York Times.

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