When the Supreme Court intervened Friday in the legal fight about mifepristone, a drug used in more than half of all abortions, the abortion debate was changing at a breakneck pace.
First, a US District Court judge from Texas, Matthew Kacsmaryk, invalidated approval of mifepristone, potentially setting a precedent that could be used to challenge any number of other controversial FDA-approved drugs. Then, less than a week later, the Fifth Circuit Court of Appeals issued an order that did not go as far as Kacsmaryk’s, requiring the FDA to reinstate restrictions on mifepristone from 2016. That would have allowed patients to use mifepristone only until the seventh week of pregnancy rather than the tenth and required them to visit a physician three times before obtaining the drug — and someone would have had to figure out what to do with all of the mifepristone that would have become mislabeled, including the stockpiles acquired by blue states. And as a kicker, the Fifth Circuit suggested that the Comstock Act, a Victorian anti-vice law, barred the mailing of not just mifepristone but any drug or device used for abortion. Down the road, the appellate court seemed ready to hold that abortion is already a crime under federal law. If people once thought that the right to abortion was safe in states like Massachusetts, it seemed that they might have another thing coming.
The Supreme Court’s order — which stayed the Fifth Circuit and preserved the status quo when it came to mifepristone — has allowed everyone to catch their breath. The court’s ruling came on the so-called shadow docket, handed down without a hearing and with little explanation, and so we can read only so much between the lines. But it’s certainly not good news for the antiabortion group that filed the suit that the court voted 7-2 to stay the Fifth Circuit’s ruling. In weighing a stay, the court is supposed to consider who will win when the case is said and done. This ruling suggests that the FDA has the upper hand. Even Justices Clarence Thomas and Samuel Alito, the two dissenters, did not pick up on the arguments made by Kacsmaryk or the Fifth Circuit.
But if the Supreme Court has granted a reprieve, it may well be temporary. There were profound procedural problems with this case that might have given even the most conservative justices pause. Start with the fact that this suit came a full 23 years after the FDA approved mifepristone (even the Fifth Circuit raised questions about timeliness). And there was the plaintiffs’ extraordinarily weak case for standing. The court’s siding with the FDA may augur well for the Biden administration in what comes later in this litigation, but that’s because this was a weak case, not because the court is any less hostile to abortion.
And new threats are already on the way. Jonathan Mitchell, the architect of Texas’s bounty six-week abortion ban bill, filed a challenge to a New Mexico law prohibiting local government from blocking access to abortion or gender-affirming care (violators would be fined $5,000 per offense). Mitchell is asking the courts to declare that the Comstock Act trumps any state law — and that it amounts to a national ban on all abortions.
There are problems with this suit too — the Supreme Court has made clear that plaintiffs can’t ask for advisory opinions on what a law means or whether it’s constitutional unless plaintiffs suffered an injury and there is a real controversy to resolve. At least so far, nothing has happened to the New Mexico towns Mitchell represents, and speculating that they may be harmed in the future might not be enough.
But this is just the first of many attempts to get the Supreme Court to endorse a broad interpretation of Comstock. Given how conservative the justices are, antiabortion groups may just need to find the right case.
And there’s the issue of interstate travel. Before the Supreme Court reversed Roe v. Wade, conservative lawmakers and antiabortion activists floated proposals to stop Americans from conservative states from traveling to progressive ones to get abortions — or even applying a conservative state’s ban to a doctor or anyone else who helps someone from a ban state, even if their conduct is legal in a blue state.
So far this legislative season, lawmakers have shied away from this kind of proposal, but not across the board: Idaho just passed a law making it a crime for minors to cross state lines for abortion without parental consent. Idaho’s law is probably the tip of the iceberg. Based on a model law from the National Right to Life Committee, a major national antiabortion group, the Idaho law is meant to tackle an issue that goes well beyond what happens to minors: an effort to stop “the abortion industry can be expected to exploit existing State laws on telehealth and the proximity of States with less protective laws to circumvent pro-life laws in a particular State.” Make no mistake: There will be more efforts to stop interstate travel, and at least one of them is likely to land at the Supreme Court.
The Supreme Court’s willingness to stay the Fifth Circuit’s ruling doesn’t tell us anything about how some of these other cases will fare. But we already know two things: No matter how long it takes, antiabortion advocates will keep sending up cases and seeing what sticks, just as they did in attacking Roe v. Wade. And no matter what happens with mifepristone, this Supreme Court is not done with abortion just yet.
Mary Ziegler is the Martin Luther King professor of law at the University of California, Davis. Her latest book is “Roe: The History of a National Obsession.”