SCOTUS & Mifepristone Takeaways

Good news, bad news, and the activists we love

Outside the Supreme Court yesterday

If you missed my column yesterday on the Supreme Court arguments—and how enraging it is that these groups are being treated credibly—you can read it below:

Say What They Are

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The Supreme Court heard arguments yesterday in FDA v. Alliance for Hippocratic Medicine, the case that will determine whether or not abortion medication is severely restricted across the country.

The short version? It’s a good news, bad news situation. The good news it that the expert takeaway seems unanimous: folks expect that the Court will dismiss the case on standing. That means justices would rule that the anti-abortion doctors who claim they suffered moral injury as a result of mifepristone don’t have sufficient legal grounds to have brought the lawsuit.

Solicitor General Elizabeth Prelogar, for example, told the justices that the doctors didn’t come “within 100 miles of the kinds of circumstances” needed to show harm. And Danco attorney Jessica Ellsworth pointed out that the doctors “do not use this product, do not prescribe this product, and have a conscience right not to treat anyone who has taken this product.” Yet they want to prevent everyone else in the country from using it!

As so many other folks have pointed out, this case never should have gotten this far. It’s flimsy at best—mostly it’s embarrassing. And that was reflected in the questioning yesterday, even from the more conservative justices. Even right-wing media could see the writing on the wall, with the National Review positing that the Supreme Court may not want to set off another abortion rights bomb this close to an election.

Now, the bad news: Clarence Thomas and Sam Alito both brought up the Comstock Act, the 19th century obscenity law that conservatives want to use to prevent the shipping of abortion medication and supplies.¹

As Dahlia Lithwick and Mark Jospeh Stern point out at Slate, even if the FDA wins the mifepristone case, abortion rights advocates can’t rest yet because the conservative justices “are already bringing the next battle to their doorstep.” Alito, for example, said that the Comstock Act is a “prominent provision" and not "some obscure subsection of complicated obscure law."

Abortion rights advocates have been screaming from the rooftops about Comstock since Roe was overturned, urging Congress to repeal the law. Given the appearance it made yesterday in arguments, it’s clear that it’s way past time that they do just that.

Despite whatever fears they may have, Andrea Grimes writes at MSNBC that repealing Comstock would be a political boon for Democrats:

“[A] Comstock repeal campaign would serve Democrats up and down the ballot this November, giving the party a uniting—and popular—cause in a time when many voters are deeply dismayed by the Biden administration’s support for the war on Gaza and inaction on protections for immigrants at the border. Focusing on Comstock repeal would put its Republican supporters on the defensive. They would have to articulate why a law passed nearly 50 years before women even had the right to vote should be enforced today, let alone used to force women and pregnant people across the country to stay pregnant against their will.”

Indeed, Rep. Cori Bush called for the repeal of Comstock on Twitter yesterday, which might make her the first elected official to do so. Would love to see some other Dems follow suit.

In The New York Times, law professors and hosts of the podcast “Strict Scrutiny,” Melissa Murray and Kate Shaw, write about another danger that comes up in both the mifepristone case and the EMTALA case headed to the Court:

“These two cases may also give the court a chance to seed new ground for fetal personhood. Woven throughout both cases are arguments that gesture toward the view that a fetus is a person. If that is the case, the legal rules that would typically hold sway in these cases might not apply. If these questions must account for the rights and entitlements of the fetus, the entire calculus is upended.”

And as POLITICO’s Alice Miranda Ollstein points out, conservatives are well-prepared for a Supreme Court loss—they’re not putting all of their eggs in one basket:

“The sprawling and loosely-coordinated tactics include other legal challenges in state and federal courts, state and federal legislation, executive orders, pressure campaigns against pharmacies that dispense the pills, and the use of environmental and wildlife laws.”

In short, they’re going to be chipping away at everything they can on various fronts—from the bullshit claim that abortion medication poisons the environment and harassment campaigns against pharmacies, to state legislation that ramps up ultrasound requirements, waiting periods and more.

Outside the Court

Abortion, Every Day researcher Grace Haley was outside the Supreme Court yesterday, taking stock of the dueling protests on abortion medication. She found that the abortion rights protestors outnumbered abortion opponents, who were largely organized by Students for Life.

It was a sizable turnout, and NBC reported that some people even slept on the sidewalks overnight to hold their spot in line. And in more love-to-see-it protest tactics, AidAccess “Roe-bots” were dispensing mifepristone. “This is a way of saying, ‘No matter what the Supreme Court decides, the pills will be here. We’re not in the 1800s anymore,” founder Rebecca Gomperts told the Washington Post.

There was also a block-long Reproductive Freedom for All petition with the names of tens of thousands of people who support medication abortion access. The best thing Grace relayed, though? That abortion rights activists danced to Lily Allen’s “Fuck You” on repeat in front of a group of anti-choice speakers. Heroes.

You can see some photos of the protests here, and check out We Testify’s Renee Bracey Sherman explaining how to take abortion medication!

One more thing from the protests: Grace noticed that anti-abortion speakers weren’t just talking about mifepristone, but misoprostol, as well. Not a surprise; we knew they were never going to stop at just one pill in the two-drug regimen. But good to know that they’re already making as much clear in public.

1. The Comstock Act could also be used to ban the shipping of certain types of contraception, like the morning after pill, that conservatives (falsely) claim are abortifacients. The president of Alliance Defending Freedom admitted that the group believes emergency contraception is abortion just a few days ago!