The Supreme Court's Mifepristone case: the right's backdoor play to ban abortion nationwide

When the Supreme Court overturned Roe v. Wade a refrain you started hearing from me was, “this is the beginning not the end.” And by that I meant, the right’s oft-repeated remark that their only goal was to return the issue to the states was clearly a smokescreen, and when they had the power they would do what they could to restrict access to reproductive healthcare and more (much more).

Regardless of the outcome of today’s case on mifepristone, what it clearly lays out is the game plan of the right: achieve ideological dominance and enact biblical conservatism through any means necessary. Alliance Defending Freedom’s booming practice, expanded donor base and entry into national lobbying has laid this bare. 

Today the Supreme Court is hearing oral arguments in FDA v. Alliance for Hippocratic Medicine. That means we won’t hear the Justices' decision for a few months (likely June/July), but we’ll be able to guess what direction they are taking the case by the questions they ask the lawyers in the hearing.

The backdrop of this case is a Supreme Court in which we hold an ever decreasing confidence because we are seeing the conservative justices prioritize ideology over jurisprudence. It’s interesting to note: John Roberts and Samuel Alito were put on the court by George W. Bush, who lost the popular vote. Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett were nominated by Trump, who likewise lost the popular vote. The right’s denigration of the court into an ideological stamp machine is a fundamental blow to rule of law. Former Supreme Court Justice Stephen Breyer said: "What I worry is this: Over time, if I’m right, and I think I am, about how originalism and how textualism will work... That will move us away from the Constitution’s basic values. And if we are moved away to that degree, people will instinctively have less reason to follow cases they don’t like, which is called the rule of law.”

The implications of this case are massive:

1.    It could determine access to abortion pills, which is how over 60% of abortions take place in the United States and is the reason people in states without legal abortion are still able to get care. It would return the protocol back to pre-2016 before telehealth prescribing was allowed. Fourteen states now have total bans on abortion, and 7 have previously unconstitutional restrictions.

2.    It could destabilize the authorization of many pharmaceuticals on the market, because the Fifth Circuit found a problem with the way the FDA approved protocol changes in 2016 & 2021. For example, the FDA relied on scientific studies that showed changes to the time period one can take the drug are safe, and separate studies about the dosage of the drug. The fifth circuit said, no, you can only approve when all changes made to the protocol are included in the same study.

Summary of the case:

The plaintiff's original argument was that the approval of Mifepristone in 2000 by the FDA was an incorrect decision because doctors who could one day - possibly, maybe - be in a position where they have to treat someone who has had a medical abortion, they think it should get to ctrl+z the thing. Because of statute of limitation issues, the case at the Supreme Court hinges on 2016 and 2021 decisions made by the FDA regarding the protocol used by healthcare providers (i.e. when in the gestational term it can be taken, how much of the drug to take, and the use of telehealth to prescribe it).

Mifepristone:

Mifepristone was approved by the FDA more than 20 years ago, has been used by over 5 million people and has been associated with 32 reported deaths (including homicides and other unrelated causes). It’s the first in a two-drug regime that allows someone to end a pregnancy at home. Telehealth allows doctors in states with legal abortion to provide Mifepristone to patients in states without it. The FDA’s 2016 scientific review of mifepristone, which was based on a dozen studies and on data from more than 30,000 patients, found low rates of “serious adverse events”; specifically, 0-0.1 percent for needed blood transfusions; less than 0.01 percent for sepsis; 0-0.7 percent for hospitalization; 0.1 percent for hemorrhage.

A critical thing to add up front: the science relied on by the anti-abortion advocates in this case is bunk as two of the key studies have been significantly retracted. One scientist cited is also an advocate of conversion therapy. Another practices ‘medicine’ based on the “teachings of the Catholic Church.” One study is based on anonymous blog posts on an anti-abortion website. This is all part of an organized movement to outlaw abortion, science is not relevant - one of the plaintiff organizations conducts its own expert witness training.

I think the best way to emphasize the unreliability of the arguments made by anti-abortion advocates in this case is this quote from pg. 15 the complaint: “Pregnancy rarely leads to complications that threaten the life of the mother or the child. Following delivery, almost all women return to a normal routine without disability.”

To underline the absurdity of this statement: In 2021, 1,205 women died of maternal causes in the US, and the rate of maternal mortality for black women is 2.6 times higher than the rate of death of white women. 

The parties in the case: 

The parties that brought this case are not non-partisan doctors who are merely in it for science. The Alliance for Hippocratic Medicine is an anti-abortion group. It was formed in 2022 (after Roe was overturned) in a jurisdiction where they knew they’d get a judge that was ideologically copacetic with their cause.  

That Judge was Trump-appointee, former lawyer for the Christian right, Matthew Kacsmaryk in the Fifth Circuit, whose sister told reporters that he had made it his mission to end all abortions in the United States. Kacsmaryk gave the plaintiffs exactly what they wanted, he has become such a ringer for the Christian right (if you want to impose a theocratic worldview on the entire country you go to him!) that the Judicial Conference enacted a new policy of randomized case assignments aimed at stopping people from judge shopping. Texas has discretion to adopt the policy and I don’t expect it to change anything. 

The lawyers working on this case are from the Alliance Defending Freedom (ADF) - the same organization whose lawyers brought the Dobbs case to overturn Roe, who drafted the Mississippi law that did it, and served as the former employer of now-Speaker of the House Mike Johnson. 

One of the judges on the three-judge Fifth Circuit Court of Appeals (which heard the case after Kacsmaryk) was James Ho. His wife, Allyson is a federal appellate lawyer who was paid by the Alliance Defending Freedom at least 6 times between 2018 and 2022. The attorney of record in the case? Erin Hawley, wife of Senator Josh Hawley (R-MO). The judiciary is a self-policed system, and the right is taking advantage of it. 

The legal issues in the case:

1. Standing: Standing is a legal concept that says you have to show you’ve been injured in some way that allows you to bring a case. None of the doctors in this case prescribe mifepristone, but they say they would feel complicit in an abortion if they had to provide care to someone who took it (though this hasn’t happened to them yet). The FDA argues that this isn’t a sufficient injury to satisfy the standing requirement, “because it rests on a long and speculative chain of contingencies,” and … it hasn’t actually happened.

The implications of an adverse standing decision in this case are overwhelmingly bad. It would mean anyone could say that something possibly happening could adversely affect them, opening the floodgates to litigation.

2. Merit: The second question is about the 2016 and 2021 changes to the mifepristone protocol and hinges on the science used by the FDA to make those decisions.   (Scotusblog goes into excellent detail on this argument if you are interested).

3. Power: The third question is if the relief ordered is the proper one. The FDA says that the Fifth Circuit Court of Appeals did not conclude the drug was unsafe but merely that the FDA didn’t explain their position well enough. It says that before an extreme decision that could impact people is final, there should have been a more discussion of the full record.

What I think will happen:

I think that the Supreme court will not rule in favor of the anti-abortion plaintiffs (ie: we win for now). The legal threshold needed to show standing is so laughably flimsy I don’t think it would catch anyone beyond complete ideologues Justices Alito and Thomas. Alito and Thomas were also the only two that did not agree with the temporary order that has allowed mifepristone to remain available while the case is pending. Ruling on procedure, rather than merit, will also give them an out to avoid the other two questions.

But that being said, what we’ve seen from the Supreme Court in recent decisions is a willingness to openly describe how they would make future decisions. I think they might comment on the third question re: power - essentially to give a roadmap to future litigation and indicate how the ADF could find the proper plaintiff to overturn the FDA decision. 

The nut of all of this is that a Trump Administration would appoint more Kacsmaryks to the bench - people who were willing to say anything to achieve ideological goals. What ADF has shown is they are capable of doing the work to give judges, placed correctly, the pretense to turn the country into a biblical one under the veneer of justice and democracy. 

So how should you talk about what happened today? Here are some talking points that may be helpful:

1. The right has a multi-pronged strategy to remake this country into a biblical nation - they appoint judges that make ideological decisions, they manufacture expert witnesses to spout bad science, they create websites and conduct studies on them to use as evidence in cases, they fund massive impact litigation organizations to bring cases, they form organizations to cultivate plaintiffs - and they will keep trying until they succeed. 

2. If this case were truly about women’s health and science, we would not be talking about limiting access to mifepristone. Mifepristone is safer than other commonly used drugs, like penicillin and Viagra. Mifepristone is also used in miscarriage care and the plaintiffs and lawyers in this case sought to remove that from the market too. Through the lens of ‘caring about women’s health’ they seek to take an important tool to protect women’s health off the market.

These aren’t abstract arguments debated in the courthouse today - this is about real women’s lives, our lives: