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A second look at last week’s Supreme Court decision offers reasons for optimism

by | Jun 18, 2024

By Dave Andrusko

Last Thursday National Right to Life critiqued the unanimous decision by the Supreme Court that concluded that the Alliance for Hippocratic Medicine lacked the legal standing to challenge decisions made by the FDA in 2016 and 2021 that made mifepristone, the abortion pill, much more broadly available.

However, it didn’t take long for both pro-life and pro-abortion forces to draw an obvious conclusion from Food and Drug Administration, et al. v. the Alliance for Hippocratic Medicine. The Court’s opinion did not address the substance of the challenges— “the merits of the FDA’s lawless removal of commonsense safety standards for abortion drugs,” as Erin Hawley of theAlliance Defending Freedom which represented the Alliance for Hippocratic Medicine said.

With that in mind, Politico ran a story under the headline “The anti-abortion wins buried in the Supreme Court’s unanimous ruling against them.”

Alice Miranda Ollstein began by writing about a “seemingly decisive defeat for the anti-abortion movement almost exactly two years after the court overturned Roe v. Wade” only to pivot to

Even as they lamented the decision, anti-abortion groups quickly seized on these glimmers of hope, telling reporters that their fight is far from over — both in the courtroom and at the ballot box.

She then quoted Hawley who said, “I would expect the litigation to continue,” adding “We’re hopeful that the FDA will be held to account.

So, what are the “four ways the Supreme Court decision could serve the anti-abortion movement”? In the interest of time, we’ll touch on just three.

#1. “Hawley and other abortion opponents noted that Thursday’s ruling was decided on ‘purely procedural grounds’ and didn’t touch on the merits of their argument, leaving the door open to pursue legal restrictions on the abortion pill mifepristone.”

#2. Ollstein describes the decision as offering as a “road map” for the right.

Both the unanimous opinion and a separate concurrence written by Justice Clarence Thomas contained suggestions for other ways abortion opponents could bring legal challenges or pursue restrictions on the pills in Congress or through the executive branch.

 

“The plaintiffs may present their concerns and objections to the President and FDA in the regulatory process, or to Congress and the President in the legislative process,” Justice Brett Kavanaugh wrote on behalf of the court. “And they may also express their views about abortion and mifepristone to fellow citizens, including in the political and electoral processes.”

 

Anti-abortion groups are already pursuing these avenues and more.

#3. Ollstein described the decision as “A double-edged sword.”

Thomas’ concurrence also included a flashing warning light for abortion-rights proponents who have long relied on what’s known as third-party standing to challenge abortion restrictions in court. Essentially, many courts have allowed doctors to bring lawsuits on behalf of their pregnant patients because the time-sensitive nature of pregnancy makes it impossible for patients to sue, and because most anti-abortion laws target doctors rather than patients with criminal and civil penalties.

Justice Thomas wrote “that the court’s decision denying standing to the doctors in the Alliance for Hippocratic Medicine should cut both ways,” Ollstein noted. “Just as abortionists lack standing to assert the rights of their clients, doctors who oppose abortion cannot vicariously assert the rights of their patients,” he said.

Before concluding, Ollstein quotes various supporters of the opinion who, for example, said “no other justice joined Thomas’ concurrence, potentially signaling this argument doesn’t have the support of a majority of the court.”

But Ollstein ended her analysis with this:

Still, conservatives celebrated the potential implications of the ruling to scuttle future abortion-rights challenges.

 

“I hope that the liberal justices will adhere to this precedent in the future, as historically they have been very willing to entertain much more tenuous standing theories for litigants whose positions they agreed with,” said Carrie Severino, president of the Judicial Crisis Network. “Time will tell.”

Categories: Supreme Court