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What’s Next in Legal Fight over Mifepristone? Supreme Court Protects Access to Abortion Pill for Now

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The U.S. Supreme Court on Friday halted a ban and other restrictions on the abortion medication mifepristone, keeping the nation’s most popular abortion method available for now as an appeal of the nationwide ban on the pill plays out. The ban was issued earlier this month by the Trump-appointed Texas Judge Matthew Kacsmaryk, who ruled the Food and Drug Administration’s 23-year-old approval of the drug was invalid. The case is likely to end up before the Supreme Court again after making its way through a lower appeals court. We speak with Mary Ziegler, law professor at the University of California, Davis, whose new piece for The Atlantic is headlined “The Justices Pass on an Abortion-Pill Ban…Until they hear a better case.”

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StoryJun 14, 2024Supreme Court Protects Access to Mifepristone, But War on Abortion Rights Continues to Escalate
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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman.

We are now turning to the U.S. Supreme Court decision, that closely watched decision, where the Supreme Court Friday halted a ban and other restrictions on the abortion medication mifespristone on Friday, keeping the nation’s most popular abortion method available for now as an appeal of the nationwide ban on the pill plays out. The ban was issued earlier this month by the Trump-appointed, right-wing Judge Matthew Kacsmaryk of Texas, who ruled the FDA’s 23-year-old approval of mifepristone was invalid. Justices Samuel Alito and Clarence Thomas were the only ones to dissent in the 7-to-2 ruling. The case is still likely to end up in front of the Supreme Court after making its way through a lower appeals court.

This has led to mounting calls to restructure the nation’s highest court. On Friday, New York Congressmember Alexandria Ocasio-Cortez tweeted, “The court has devolved into a highly politicized entity that is rapidly delegitimizing. Open discussion of checking the court’s abuse of power & defying Kacsmaryk possibly contributed to pause/consideration.The court has devolved into a highly politicized entity that is rapidly delegitimizing. Open discussion of checking the court’s abuse of power and defying Kacsmaryk possibly contributed to pause/consideration.” AOC and others had called on the federal government to defy the Texas judge’s order. Arguments in the challenge to the mifespristone ban are scheduled for May 17th.

For more, we go to Mary Ziegler, the Martin Luther King professor of law at the University of California, Davis, author of six books, including Roe: The History of a National Obsession and Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment. Her new piece for The Atlantic is headlined “The Justices Pass on an Abortion-Pill Ban…Until they hear a better case.”

Welcome back, Professor Ziegler, to Democracy Now! It’s great to have you with us. Explain what you mean. Talk about the significance of the Supreme Court ruling on Friday.

MARY ZIEGLER: Well, the significance on the ground is hard to underestimate, because, of course, this means that people will have access to this pill, mifespristone, on the same terms they did before this litigation began. But we don’t want to read too much into it, either. This is what’s considered a shadow docket ruling, meaning there was no oral argument, meaning we don’t really know why the majority of the justices did what they did. And, of course, it’s early in the litigation.

But I think most of us are probably correct to assume that this doesn’t bode well for the anti-abortion groups that are the plaintiffs in this suit. Seven of the justices sided with the FDA, and that’s a preview of what they think of the merits of the case. But that doesn’t mean that the Supreme Court is generally any less hostile to abortion or any less conservative than was the case before. Most likely, it just means that this was a lousy case. There were real questions about whether these plaintiffs had standing to sue. They brought this case 23 years after the FDA approved mifespristone, so there were questions about whether it was a timely lawsuit. And so, it may just be that no matter how conservative the justices are, they thought this case is procedurally so flawed that we can’t sign off on it. But there are lots of, unsurprisingly, anti-abortion lawsuits in the pipeline, because anti-abortion lawyers understand how conservative the Supreme Court is right now.

AMY GOODMAN: So, if you can explain — you had Alito and Clarence Thomas dissenting. Explain what that meant and what it signifies for the future. And, of course, I mean, you have this Supreme Court that’s completely bogged down other ways, as well. And the serious questions being asked about Clarence Thomas, if you think that weighed in? And this isn’t separate from — I mean, that would be levels of corruption, not reporting financial support from this billionaire donor. It’s not separate from this story, because he’s deeply tied to Leonard Leo, Leonard Leo who was key to getting Kacsmaryk seated as a Trump appointee, a judge in Amarillo, Texas.

MARY ZIEGLER: Yeah, I mean, the dissent, again, I think, was bad news for these anti-abortion plaintiffs, in the sense that we don’t — we don’t know why Thomas dissented. He just dissented. He didn’t explain what he was doing. Alito dissented, essentially, to say not that he thought that the plaintiffs had standing to sue, not that he thought that the FDA didn’t have authority to approve mifespristone, not to allude to this 19th century anti-vice law called the Comstock Act, but basically to say, “I don’t think the FDA is going to suffer any harm here, because I don’t think the FDA would basically enforce any order against mifespristone anyway, because the FDA thinks mifespristone is safe and effective,” so essentially saying the FDA is either going to use its discretion to ignore anything we say or the FDA is going to be somehow kind of lawless — which was a weird thing to write. But again, bad news for the plaintiffs, because even Justice Alito wasn’t taking the time to express any kind of sympathy for any of the plaintiffs’ arguments about mifespristone itself, right?

In terms of whether Clarence Thomas’s ongoing scandals had anything to do with this, I’d be a little — a little skeptical of that. I mean, it may be that some of the justices who are now considered often the ones holding deciding votes, like Brett Kavanaugh and Amy Coney Barrett, maybe they’re concerned with the court as an institution and the perceived legitimacy of the court. But I think there are some signs that a lot of the justices on this court are not concerned with the court’s legitimacy, don’t see themselves as stewards of the institution. I certainly think that’s true of Thomas, who at various points has sort of presented himself in very populist terms as sort of an outsider who’s opposed to institutions, not some like Chief Justice John Roberts, who, for all that he’s very conservative, does seem very anxious about perceptions of the court. Some of the other members of the current conservative majority don’t seem to share those concerns. And so, it would surprise me, for example, if someone like Neil Gorsuch, who joined the opinion staying this, the 5th Circuit’s ruling, if he was concerned about what’s going on with Clarence Thomas. I think it may be more that within the conservative legal community, there are a lot of sort of pet arguments that people like Leonard Leo have cultivated over the years, and those include arguments about standing. And these plaintiffs, I just don’t think, had standing. But I don’t know if this augurs a sort of broader shift in the court or broader concern about the legitimacy of the court that might slow down some of the really revolutionary changes the court is making in jurisprudence across the board, not just, of course, when it comes to abortion.

AMY GOODMAN: Do you think the Supreme Court is aware of the effect it’s having, for example, even on the elections to come, and how deeply unpopular these decisions around abortion are, that across the political spectrum the vast majority of Americans are against an anti-abortion ban?

MARY ZIEGLER: Yeah, you know, it’s hard to say. I mean, so, do I think they’re aware? Absolutely. I mean, these are intelligent people. The question is more: Do they care? Right? And there’s sort of different ways you could view the role of a deeply conservative justice, right? You could see yourself as a sort of partisan soldier, so you could see your role as being to facilitate, in part, outcomes that the Republican Party is invested in, or not, right? You could see your role as being faithful to some kind of ideology or interpretive set of commitments that have nothing to do with the GOP or nothing to do with the people who nominated you.

And I think at least some of the justices — and this was very clear in Justice Alito’s opinion in the Dobbs case last summer. Essentially, Justice Alito says, you know, people are raising the idea that this opinion will damage our legitimacy, and, one, I don’t know if that’s true, but, two, and more importantly, if it is true, we shouldn’t care about that, because the court’s legitimacy and the public perception of the court is not our job. And I think there are a number of conservative justices who really feel that way when they’re doing things that are unpopular. That’s really none of anyone else’s concern. Of course, that puts the court in some tension with the Republican leadership, because the Republican leadership wants to be able to cut its own path when it comes to abortion, and not be pushed into defending things like nationwide bans from the 19th century that the courts are bringing to the fore — right? — that people like Judge Kacsmaryk and the 5th Circuit are going to bring to the fore. And I think we’re going to continue to see that at least from the 5th Circuit, as the 5th Circuit continues to look at this case in May. And it may well be that the Supreme Court takes that up, as well. But I don’t know, right? I don’t know if the Supreme Court cares about its effect on elections or not. My guess is no.

AMY GOODMAN: And, Professor Ziegler, where the access to the abortion pill? The majority of Americans who — the majority of people who use this — who get abortions use the abortion pill. Its access right now?

MARY ZIEGLER: Right now it’s the same it’s been before this litigation began. So, if you are in a blue state that has no restrictions or bans on abortion, you can get access to this pill via telehealth up to the 10th week of pregnancy. If you’re in a state that’s criminalized abortion, of course, this outcome hasn’t changed that. You’re not able to get access to the pill in your state. You would have to travel to a different state or use something like Aid Access. And so nothing has changed at the national level.

But I think this suit and, I think, the references to the Comstock Act make clear that people who are in progressive states can’t be complacent in the sense of assuming that their access to abortion will be determined by their state governments, because this is one of a series of suits that are trying to take the question out of the hands of voters and lawmakers in progressive states, essentially to kind of nationalize outcomes via the federal courts.

AMY GOODMAN: Well, we want to thank you, Mary Ziegler, for joining us, Martin Luther King professor of law at the University of California, Davis. We’ll link to your piece in The Atlantic, “The Justices Pass on an Abortion-Pill Ban…Until they hear a better case.”

We’re going to go to a 30-second break, then hopefully we’ll be able to connect with the Norwegian Refugee Council about Sudan and Honduras. Stay with us.

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