For this Supreme Court to reject abortion restrictions, the argument has to be pretty bad.
“That it?” Justice Amy Coney Barrett cut in tersely as anti-abortion group lawyer Erin Hawley (yes, that Hawley) enumerated the supposed harms to a group of doctors from the Food and Drug Administration lifting restrictions on abortion drug mifepristone.
Hawley on Tuesday was at times buried by a bipartisan dogpile as the likes of Chief Justice John Roberts, Neil Gorsuch, Brett Kavanaugh, Barrett and even Clarence Thomas joined the liberals in questioning the group’s standing to bring the challenge and the nationwide restrictions it’s seeking.
Justice Samuel Alito, one of the most doggedly devoted members of the bench to reverse engineering even doily-like arguments into his preferred outcome, tried valiantly to put a gloss on the anti-abortion case.
Is the FDA “infallible?” he challenged the government. Isn’t it “obvious” that lifting multiple restrictions at once may have a different effect in combination, he mused, parroting the anti-abortion group’s argument. He sneered that the manufacturer of branded mifepristone’s injury is just monetary — a refreshingly dismissive take on corporate interest from a right-wing judge.
“So your argument is it doesn’t matter if FDA flagrantly violated the law, it didn’t do what it should have done, it endangered the health of women, it’s just too bad, nobody can sue in court?” he asked U.S. Solicitor General Elizabeth Prelogar.
But the fight went out of Alito as the arguments went on and it became clear that his peers were, at the least, highly suspect of the legal underpinnings of the challenge.
The other right-wing justices too, initially eager to at least throw a bone to the anti-abortion movement, had largely abandoned that posture by the time Hawley took the stand.
Early on, Barrett and Kavanaugh had repeatedly confirmed that there are and would still be federal conscience exemptions for anti-abortion doctors loath to perform the procedure — seemingly to sure up their bona fides with the movement, even if they came down against it on this case.
Roberts asked whether there was some threshold of adverse reactions to mifepristone, some number of women sent to emergency room care, that would require a government response.
But that was all they could muster. Before long, they too were poking holes in the anti-abortion case. Hawley struggled to prove a concrete injury that gave the doctors grounds to sue beyond speculative harms they may one day have to face. The onslaught came to a head when Gorsuch jumped in to back up Justice Ketanji Brown Jackson, who was questioning how restricting mifepristone for the entire country could possibly be a proportionate reaction to a handful of anti-abortion doctors who are worried about one day potentially having to treat a woman coming to their emergency rooms due to a (very rare) serious complication from the drug.
“We say over and over again, provide a remedy sufficient to address the plaintiff’s asserted injuries and go no further,” he said.
“This case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule or any other federal government action,” he added.
This is a direct shot at Judge Matthew Kacsmaryk and the 5th Circuit Court of Appeals, the authors of many rulings comprising the “rash” of nationwide injunctions Gorsuch criticized, both of whom granted such sweeping relief in this case. This dynamic of seeking nationwide relief, usually by right-wing litigants seeking to stop some government action, has become so blatant that the Judicial Conference earlier this month issued a rare policy change to crack down on it.
Hawley barely had a chance to counter Gorsuch before Roberts stepped in to reinforce the question, probing why she wouldn’t be content if the Court ruled in such a way that exempted her specific clients from ever being in this situation. She, of course, could not say the truth, that these kinds of lawsuits are not about the professed qualms of a handful of anti-abortion doctors, but the mission to limit abortion access on the way to making it illegal everywhere.
Thomas, like his colleagues, seemed to recognize that the case is just too weak for the Court to accept. But his reaction, rather than to stop participating or to spend much time interrogating Hawley on the case’s shortcomings, was much more in line with the practice of a justice once sidelined to dissents, whose extreme right-wing jurisprudence has become much closer to the guiding principle of the Court and the legal world from which its majority came.
He started laying the groundwork for the next abortion challenge, signaling to mifepristone’s opponents that he’d be amenable to an argument against mailing the drug under the Comstock Act. It’s a 19th century anti-vice law that prohibits the mailing of abortifacients, dormant for decades until the anti-abortion movement’s recent efforts to revive it.
“The government, the solicitor general points out, would not be susceptible to a Comstock Act problem,” he said to the lawyer for the mifepristone manufacturer. “In your case, you would be. So how do you respond to an argument that mailing your product and advertising it would violate the Comstock Act?”
