Just as they did when the Supreme Court managed to reject the utterly outlandish independent state legislature theory in Moore v. Harper, too many credulous court watchers rushed forward last week to praise the high court for its “reasonableness” in rejecting a half-baked claim to restrict access to mifepristone, the medical abortion drug. It gets no brownie points for knocking down on technical standing grounds one of the more outlandish opinions from the U.S. Court of Appeals for the 5th Circuit and antiabortion activist District Judge Matthew Kacsmaryk.
Despite headlines that the court was saving or preserving mifepristone, it did nothing of the sort. Worse, Americans have plenty of reason to fear what the most radical and aggressive Supreme Court since Dred Scott is up to.
The majority found that the respondent, Alliance for Hippocratic Medicine, lacked standing because the group’s members were already spared from any obligation to perform medical abortions by federal conscience clause protections, had only the most speculative injuries, and had to do more than prove it devoted resources to the issue to qualify for “associational” standing. (Plaintiffs cannot “spend” their way into standing, the majority held.)
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As a preliminary matter, Justice Clarence Thomas (under fire for yet more unreported lavish gifts from right-wing billionaire Harlan Crow) filed a concurrence that was downright scary. He argued that no organization or association should ever be allowed to assert organizational standing. Here, he went after a nearly 50-year-old precedent.
As Reuters explained, “Thomas essentially attacked a long-recognized legal doctrine relied upon by associations ranging from the nation’s biggest business lobby — the U.S. Chamber of Commerce — to environmental groups and gun rights advocacy organizations to challenge government policies by suing on behalf of their members.” By depriving the most able plaintiffs from challenging statutes, Thomas would give the federal government and states license to run roughshod over individual rights without necessarily changing the substantive law.
Following his attack on Brown v. Board of Education in the South Carolina redistricting case and his assault on Griswold v. Connecticut in the Dobbs case, Thomas once more reveals just how radical the Supreme Court, with the addition of more radical justices, might become in the future.
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One could simply substitute Thomas for Robert Bork, the radical nominee whose appointment was scuttled in 1987, in Sen. Edward M. Kennedy’s famous denunciation:
[Clarence Thomas’s] America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.
What was hyperbole is now a road map straight from the concurrences of one of the most radical justices. In the upcoming election, Democrats would do well to focus on the extremism of the Supreme Court as they explain how even more extreme the court would become with more MAGA appointees.
Drilling down on the majority opinion, one finds that the court says nothing that would restrict states from banning all abortions, medical or otherwise. As Dahlia Lithwick and Mark Joseph Stern remind us, “It remains unlawful to prescribe in states that criminalize abortion; it has even been deemed a ‘controlled substance’ in Louisiana.” Moreover, Thomas and other radicals’ pet theory for banning all abortions — expansion and contortion of the Comstock Act to prevent use of the mail to send abortion devices or literature — “will roar back with a vengeance,” the authors note, if Trump prevails and the Supreme Court, freed from worries about a national backlash, decides to take the issue on squarely.
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Furthermore, while this particular plaintiff was denied standing, another party, such as a state or individual doctor, might easily establish standing to take another crack at outlawing mifepristone. Jenner & Block, a litigation firm, explains on its blog:
First and foremost, this decision does not spell the end of the mifepristone litigation. While this case was pending at the Supreme Court, three states — Missouri, Idaho, and Kansas — successfully intervened at the district court. Now that the case has been remanded, these three states will continue their challenge to the FDA’s regulation of mifepristone, and based on their complaint, they intend to make many of the same arguments as the Alliance. Specifically, the three states have challenged the FDA’s decisions to expand access to mifepristone from 2016 onward, including the ability to have mifepristone dispensed via telehealth services and distributed by retail pharmacies. Given the district court’s willingness to enjoin the FDA’s approval entirely and the Supreme Court’s failure to reach the merits, it is likely that the states will prevail on at least some of their claims. This would mean another year or more of appeals to the Fifth Circuit and the Supreme Court, with continuing uncertainty surrounding the regulation of mifepristone in the interim.
Mifepristone, therefore, has not been “saved” in any sense. If anything, it’s on life support, pending an election that would give the court a green light to go wild and/or offer felon and former president Donald Trump the chance to add to the ranks of the most extreme justices.
Beyond the court looms a much greater threat to mifepristone access and to all reproductive rights: the Republican Party. On the same day as the mifepristone case came down, all but two Republican senators blocked protection for IVF.
“Once again, Senate Republicans refused to protect access to fertility treatments for women who are desperately trying to get pregnant,” President Biden said in a statement. “And just last week, Senate Republicans blocked nationwide protections for birth control.” He added, “Republican officials have had every opportunity to protect reproductive freedom since the Supreme Court’s extreme decision to overturn Roe v. Wade, but they refuse to do so.” And if Republicans go after IVF, you can be certain they would, if given the chance, ban mifepristone.
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Indeed, Republicans would feel politically compelled to do so. Last week, the nation’s largest Protestant denomination, Southern Baptists, voted “for the resolution opposing IVF, which also urged the denomination’s members ‘to advocate for the government to restrain actions inconsistent with the dignity and value of every human being, which necessarily includes frozen embryonic human beings.’” No one should doubt that if the GOP prevails in the fall, its base will demand Republicans ban it all: contraception, IVF, mifepristone and all other forms of abortion.
So be forewarned: If MAGA extremists return power, they and their radical handmaidens on the Supreme Court will not hesitate to create Clarence Thomas’s America. It won’t be a place that the vast majority of Americans find congenial — or even recognizable.
