Even Right-Wing Justices Don’t Bite On Anti-Abortion Effort To Restrict Mifepristone Nationwide

March 26, 2024
WASHINGTON, DC - MARCH 7: U.S. Supreme Court Chief Justice John Roberts (L) and Associate Justices (L-R) Sonia Sotomayor, Elena Kagan and Neil Gorsuch stand on the House floor ahead of the annual State of the Union ... WASHINGTON, DC - MARCH 7: U.S. Supreme Court Chief Justice John Roberts (L) and Associate Justices (L-R) Sonia Sotomayor, Elena Kagan and Neil Gorsuch stand on the House floor ahead of the annual State of the Union address by U.S. President Joe Biden before a joint session of Congress at the Capital building on March 7, 2024 in Washington, DC. This is Biden's final address before the November general election. (Photo by Shawn Thew-Pool/Getty Images) MORE LESS
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March 26, 2024

The anti-abortion side emerged from Tuesday’s oral arguments considerably worse for wear after even their ideological allies on the bench questioned their standing to bring the case and the sweeping scope of the restrictions they sought.

At times, it became a full Court pile-on, particularly in response to the anti-abortion group’s quest for nationwide restrictions on the drug due to a handful of doctors’ objection to maybe, perhaps, one day, having to complete an abortion for a woman suffering from mifepristone’s side effects.

While the legal underpinnings of the mifepristone challenge are widely considered to be shoddy, we’ve seen the work that judges’ political preferences can do in bridging the gap to the preferred result. In this case, both Judge Matthew Kacsmaryk and the 5th Circuit Court of Appeals were willing to make that leap. The Supreme Court, based on what we heard today, seems not to be.

Oral arguments begin at 10 a.m. EST. Listen live here.

Lawyers We'll Hear From Today

    • U.S. Solicitor General Elizabeth Prelogar for the government

    • Jessica Ellsworth for Danco, a company that manufactures mifepristone

    • Erin Hawley for the anti-abortion doctors (if the last name looks familiar, it's because she's married to Sen. Josh Hawley (R-MO))

More Less

The anti-abortion side emerged from Tuesday’s oral arguments considerably worse for wear after even their ideological allies on the bench questioned their standing to bring the case and the sweeping scope of the restrictions they sought.

At times, it became a full Court pile-on, particularly in response to the anti-abortion group’s quest for nationwide restrictions on the drug due to a handful of doctors’ objection to maybe, perhaps, one day, having to complete an abortion for a woman suffering from mifepristone’s side effects.

While the legal underpinnings of the mifepristone challenge are widely considered to be shoddy, we’ve seen the work that judges’ political preferences can do in bridging the gap to the preferred result. In this case, both Judge Matthew Kacsmaryk and the 5th Circuit Court of Appeals were willing to make that leap. The Supreme Court, based on what we heard today, seems not to be.

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