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A few thoughts on the Supreme Court's skepticism of limiting access to abortion pill

On Tuesday, the Supreme Court heard oral arguments in a case challenging the Food and Drug Administration’s approval of mifepristone, marketed as Mifeprex, which is commonly used in a two-drug regimen that facilitates pharmaceutical abortions.

Mifeprex works by cutting off the supply of hormones that maintain the integrity of the uterus during pregnancy, leading to the eventual expulsion of a growing fetus. But the drug’s users may experience complications, some of which can be quite serious. In arguments before the court, Alliance Defending Freedom senior counsel Erin Hawley, the wife of Senator Josh Hawley, argued that the FDA began unlawfully deconstructing critical safeguards that previously restricted access to chemical abortifacients, including lifting obligatory in-person doctor visits to insure against ectopic pregnancies, severe infections, or significant bleeding.

The issue has grown in relevance following the onset of the pandemic, which saw a spike in the number of self-administered abortions. “Researchers determined that an increase of approximately 27,838 online orders of abortion pills between July and December 2022 corresponded to the findings of an additional 26,055 medication abortions reported outside the formal health care system,” according to a study published in the American Medical Association journal JAMA.

Last summer, the U.S. Fifth Circuit Court of Appeals determined that the FDA had overstepped its authority by removing these safeguards. It recommended that the regulatory agency both restore them and restrict the future shipment of this drug by mail (restrictions that would stop short of making the drug illegal, though access to these pills is already restricted in more than a dozen states). Now, the ball is in the Supreme Court’s . . . court. But some have concluded from oral arguments that the justices don’t seem so eager to find in favor of the plaintiffs.

“Only two justices, the conservatives Samuel A. Alito Jr. and Clarence Thomas, appeared to show some support for the anti-abortion challengers,” the New York Times reported. Along with the Court’s liberal justices, who appeared unconvinced that the plaintiffs in the case had demonstrated that anyone experienced sufficient injury to claim standing and flatly rejected the notion that existing conscience protections were insufficient to address the qualms of physicians who could be compelled to prescribe these pills, some of the conservative justices seemed similarly leery of rendering a verdict with sweeping implications.

Justice Neil Gorsuch wondered if the case would serve as “a prime example of turning what could be a small lawsuit” into a situation that forces the Court to act as “a nationwide legislative assembly on an FDA rule or any other federal government action.” Justice Amy Coney Barrett pushed back against Hawley’s claim that two doctors had objected to being involved in the termination of a pregnancy via the prescription of this drug, saying that she saw little evidence that those physicians had participated in that procedure at all. “Under federal law, no doctors can be forced against their consciences to perform or assist in an abortion, correct?” Justice Brett Kavanaugh probed. Along with Justice Ketanji Brown Jackson, Chief Justice John Roberts wondered why the remedy the plaintiffs sought needed to be as broad as restricting access to this drug for the whole American population. “Why can’t the Court specify that this relief runs to precisely the parties before the Court as opposed to looking to the agency in general and saying, ‘Agency, you can’t do this anywhere?’” he asked.

In their apparent friendliness toward the arguments raised by the plaintiffs, Justices Alito and Thomas raised the specter of Anthony Comstock, a Gilded Age anti-vice campaigner who helped establish a nationwide network of vice squads devoted to policing the dissemination of lewd, pornographic, and even provocative literature in the 19th century.

The so-called “Comstock laws” restricted access to those and other materials, including their transmission through the U.S. mail — restrictions H. L. Mencken famously and successfully challenged. A lower court that found in favor of the plaintiffs in this current case found a remedy in the still-active provisions of the 1873 Comstock Act, which prohibits the distribution via post of any “article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use it or apply it for producing abortion.” Over the generations, “Comstockery” has become a byword for prudery, but the law is the law. Alito argued that the Comstock Act is not an “obscure” but, rather, “prominent” federal statute. Thomas appeared to agree. Nevertheless, their seven colleagues didn’t seem to share their enthusiasm.

The indications that the Court will decline to once again introduce new restrictions on abortion practices in America in the middle of an election must be a letdown for Democrats and their media allies. Ahead of oral arguments, Middlebury College economist Caitlin Meyers told Yahoo! News that a decision favoring the plaintiff “could be bigger than Dobbs” in terms of its real-world and political impact. National Public Radio deemed this case the “daughter of Dobbs,” a grandiose assault on the “FDA’s regulatory power to approve drugs and continually evaluate their safety — a system that until now has been widely viewed as the gold standard for both safety and innovation.” Temple University Law School dean Rachel Rebouché agreed. “This might be the most important event since Dobbs on so many levels,” she told the New York Times. “Thousands and thousands of pills are being shipped everywhere across the United States from a handful of providers. That alone speaks to the nature of what mailed medication abortion can do.”

Some Democrats have already laid the rhetorical groundwork to connect a Supreme Court decision that cuts against unfettered access to abortion drugs to a February ruling by the Alabama Supreme Court that found frozen embryos have the same rights as already-born children — a decision that led local in-vitro-fertilization providers to limit access to their services. Restricting mail-order abortion medication would yield “even more economic damage than Dobbs,” Senator Sheldon Whitehouse said in a recent congressional hearing in which he connected the case to a broader assault on reproductive choice. “Even in vitro fertilization is under the gun, at the hands of right-wing extremists.”

Senator Whitehouse’s well-known penchant for reckless hyperbole notwithstanding, some Republicans seem to think he has a politically salient point. In a memo produced by Republican State Leadership Committee president Dee Duncan, the GOP’s 2024 nominees are advised to avoid embracing the Alabama court’s decision. “Voters are 58% more likely to support a candidate that voted for commonsense protections for doctors and fertility clinics who assist patients and families in having children,” the memo read in a reference to the IVF decision. On that front, the GOP doesn’t seem to need much goading.

Many Republicans rushed to distance themselves from the political fallout settling over Alabama following that court’s ruling, but not all. “IVF is morally dubious and should not be subsidized by the American taxpayer,” four House Freedom Caucus members wrote in opposition to an effort to expand access to IVF treatments for veterans. In reporting on how Democrats are seeking to leverage that letter to tarnish the Republican Party as a whole, Axios noted somewhat incongruously that “the Democratic Congressional Campaign Committee tried to tie vulnerable GOP incumbents to groups seeking to have the Supreme Court restrict access to the abortion drug mifepristone.”

The connection between IVF and mifepristone may not be readily apparent to most observers save the tenuous connection they both have to reproductive outcomes, but Democrats are busily establishing that very connection. And they have willing abettors in the press.

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