Supreme Court won’t let red states help ban the abortion pill—for now

This past Tuesday, the U.S. Supreme Court denied the bid of three red states—Idaho, Kansas, and Missouri—to intervene in the abortion pill case the court will hear in March. In January, the states asked the court to allow them to join in, at least in part, to bolster a potentially fatally flawed suit. The problem? The conservative physician groups who brought the case have little right to sue in the first place.

That wasn’t an issue for extremist District Court Judge, Donald Trump appointee Matthew Kacsmaryk, or for the equally conservative activist judges on the 5th Circuit Court of Appeals who agreed with him. But it’s a very basic problem for the Supreme Court which has to project at least a semblance of knowing what they’re doing with the law.

Legal writers Dahlia Lithwick and Mark Joseph Stern explain at Slate:

There are good reasons to believe [the Supreme Court] will chuck the case because the shady Alliance for Hippocratic Medicine and its members simply lack standing to sue and really always did. To let the plaintiffs into court, both Kacsmaryk and the 5th Circuit shamelessly butchered the law of standing, a lodestar of judicial restraint which requires a showing of imminent, concrete harm. To arrive at such a harm, the MAGA judges theorized the following chain of events: 1) A doctor with no connection to the plaintiffs prescribes mifepristone; 2) a patient takes the medication and suffers complications; 3) the patient seeks treatment from one of the plaintiffs; resulting in 4) the plaintiff being forced to complete the abortion; and 5) this treatment causes him “trauma” sufficient to establish standing.

So the states stepped in with a motion to keep the case alive in the event that the justices follow the law and determine the groups aren’t harmed by the legality of the abortion pill, and the justices denied it. As is customary on rulings like this, they didn’t issue a statement explaining why.

That’s good so far—and an indication that the high court is at least a little bit skeptical of the case. If the court is looking for a reason to not make another politically disastrous abortion ruling in an election year, they have a very good one with the standing issue.

The problem, however, is that the underlying case to severely restrict access to mifepristone still exists. The 5th Circuit decided last year that Kacsmaryk’s ban on the abortion pill, which challenged the FDA’s decision to approve the drug in 2000, couldn’t stand. But the court did make sure the drug was as hard to get as possible, rolling back FDA authorizations that made it available to people by mail, allowing it to be prescribed by telemedicine, and allowing its use up to the 10th week of pregnancy. The Supreme Court stayed that ruling, pending next month’s appeals from the FDA and Danco Laboratories—the drugmaker—to that part of the 5th Circuit’s ruling. 

If the Supreme Court decides in the FDA’s favor, as seems likely, on the basis of standing, Kaczmaryk has left the door open for another challenge. Last month, he allowed those states to intervene in the underlying case at the district court level, giving forced-birth advocates a second bite at the apple. The case remains active at the district and appeals court levels, and this gives a potential new avenue for the forced birth activists to shut down access to mifepristone.

If the Supreme Court says the physician groups can’t bring the challenge, the states can take a go at it. And they will. The far-right forced-birth movement has seized the issue, working on a plan to use a 19th-century law written to prevent women from obtaining contraceptives to allow the next Republican administration to outlaw most abortions. They—and the Trump-packed Supreme Court—are willing to play the long game.

As Lithwick and Stern point out, a potential Supreme Court decision upholding the expanded use and access of the drug on a technicality doesn’t mean that the battle is over. “A Supreme Court end-of-term surprise in which the headlines blare that the court protected abortion rights is nothing more than an election-year valentine for Donald J. Trump, his three Supreme Court nominees, and the Ken Paxtons of the world, who will all live to immiserate women another day, and the day after that,” they write.

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The economy seems to be going great, but lots of voters still say they aren’t feeling it. So how should Democrats deal with this conundrum? On this week’s episode of “The Downballot,” communications consultant Anat Shenker-Osorio tells us that the first step is to reframe the debate, focusing not on “the economy”—an institution many feel is unjust—but rather on voters’ economic well-being. Shenker-Osorio advises Democrats to run on a populist message that emphasizes specifics, like delivering tangible kitchen-table economic benefits and protecting personal liberties, including the right to an abortion.

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