I guess we should be pleased that the Supreme Court seems likely to dismiss a case that would severely limit access to mifepristone, a pill that is part of a two-drug regimen used in nearly two-thirds of U.S. abortions.
Polls show that Americans overwhelmingly approve of mifepristone and believe, as medical experts do, that the pill, used in abortions up to 10 weeks of pregnancy, is safe. Polls also show that Americans overwhelmingly believe it should remain legal to receive the pill in the mail.
And it’s not just polls, it’s also elections. Overturning Roe v. Wade has been an electoral disaster for Republicans.
Meanwhile, you don’t need a poll or an election to guess that Americans overwhelmingly reject the notion that a judge knows more about the safety of a medication than the FDA, which first approved mifepristone’s use more than 20 years ago. Of course they do.
It would be an important ruling, expected to be handed down sometime in June, in the never-ending battle over abortion rights.
But I wouldn’t get too happy, and for a couple of reasons.
One, you may recall that the anti-abortion advocates/zealots worked 50 years to get a Supreme Court — brought to you by Donald Trump, who appointed three right-wing justices — that would overturn Roe v. Wade, leaving decisions on abortion rights to the states.
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And as the mifepristone case shows, these advocates/zealots will be at work for at least the next 50 years trying to find any way to get abortion banned altogether. (See: the anti-IVF ruling by the Alabama Supreme Court that frozen embryos were, yes, children. See: the Texas anti-abortion group that attempted to get Pueblo City Council to ban abortions in the city as a challenge to post-Roe Colorado law.)
Two, this case was absurd on its face. It was brought by 11 doctors, none of whom prescribe the pill, none of whom had ever performed an abortion on a patient who had complications from what is a very safe pill, most of whom are very public anti-abortion activists.
In legal terms, this means the plaintiffs lacked what they call standing. In non-legal terms, it means these doctors and their lawyers were looking for something, anything, they could use that would ban a pill that has been legally prescribed, and often sent through the mail, to millions of women.
One of the doctors, by the way, is a state senator. One is an, uh, expert in the abortion pill “reversal” procedure. One isn’t even licensed to practice medicine.
As you may know, there are already so-called conscience laws protecting most health care providers who oppose abortion from performing one, which would seem to solve any problem for the doctors in this case.
As liberal Justice Ketanji Brown Jackson asked of the plaintiffs’ lawyer, “Do we have to also entertain your argument that … no one else in America should have this drug in order to protect your clients?”
Conservative Justice Neil Gorsuch noted that the case “seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly.”
As I said, absurd. If the court rules against the FDA, it could credibly allow anyone to legally challenge, without standing, the credibility of any federal agency, not to mention diminishing the FDA’s reputation for regulating medical practices.
Three, it’s great if the justices dismiss this case. What’s not so great is that it ever got to the Supreme Court in the first place.
The pill, which studies have shown to be safe and effective, is legal in more than 90 countries. Most medical experts say mifepristone is safer than Tylenol and, gulp, Viagra. It has been legal in the United States since 2000. With decisions made in 2016 and 2021, the FDA loosened the rules so that women could more easily access the drug, which can be prescribed through telemedicine and sent through the mail.
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The reason the pill has become so controversial is that with abortion all but banned in so many states since the end of Roe, health organizations have been mailing the pill to women in many of these states, where it can be difficult to trace who gets the pills and how, or if, they were even used.
The fight has never been about safety. It is all about ending abortion. And the group bringing the case, Alliance for Hippocratic Medicine, found a Texas federal judge who is a well known abortion opponent — that’s called judge shopping — and whose unsurprising ruling against the pill was mostly upheld by the 5th U.S. Circuit Court of Appeals, the most conservative circuit in the country.
That’s how the case got to the Supreme Court. You can expect other cases to get there in much the same way.
Four, although the Supreme Court might see as many as seven justices — including all three Trump appointees — deciding in favor of keeping mifepristone available, that may not end the matter. The two justices most likely to oppose — Clarence Thomas and Sam Alito — both asked several questions about the 1873 Comstock Act.
For those who missed studying Comstock in school, it was an infamous anti-vice law that centered on sending pornography — you know it when the U.S. Postal Service delivers it — through the mail, even when sent in plain brown wrapping. Oh, and the act has also been basically obsolete for nearly a century.
But the act didn’t cover just naughty pictures. It also covered birth control and abortion. Congress removed the part of the law regarding birth control, but not the part covering abortion. Don’t be surprised if Thomas and Alito, writing in dissent to the expected pro-mifepristone, pro-FDA ruling, try to draw a path for using the Comstock Act in future challenges.
We’ve already seen it in Colorado. The Comstock Act was the guiding force in the proposed law on abortion that Pueblo rejected.
As you know, Colorado has some of the nation’s most liberal abortion-rights laws and, as a result, has become a haven for women living in illiberal states. But the continuing threats to abortion have led to a move to enshrine the right in the state constitution.
To put the measure on the ballot requires nearly 125,000 signatures, including at least 2% of registered voters from each of the 35 state Senate districts. And then it would need 55% of the vote to pass.
But for Democrats, even in states where it’s difficult to get such initiatives on the ballot, it’s not all that burdensome. Not when it’s such good politics. Voting on abortion-rights laws has proved to be a political winner for Democrats whenever actual people get to decide, even in states like Kansas or Kentucky.
The Supreme Court decision, however it goes, is just a reminder that abortion rights will remain under attack for the foreseeable future.
But, at the same time, protecting abortion rights — at least in the near term — in Colorado, where two of the eight congressional races figure to be at least reasonably close, could be just as easy as sending your ballot through the still-protected mail.
Mike Littwin has been a columnist for too many years to count. He has covered Dr. J, four presidential inaugurations, six national conventions and countless brain-numbing speeches in the New Hampshire and Iowa snow. Sign up for Mike’s newsletter.
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