Leah, Melissa, and Kate give a quick take on the bottom line from the oral arguments in the medication abortion case that is currently unraveling in the Supreme Court.

TRANSCRIPT

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Show Intro Mr. Chief Justice, may it please the court. It’s an old joke, but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said. I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

Melissa Murray Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We’re your hosts. I’m Melissa Murray.

Kate Shaw I’m Kate Shaw.

Leah Litman And I’m Leah Litman. This is not a full episode. It’s not even a full emergency episode on the medication abortion case. But given how important the case is and the fact that coverage is unfolding now, we wanted to push something out to all of you so you can help your friends stay informed. Specifically, stay informed about what the Supreme Court might be up to.

Kate Shaw Right. So today the court heard the arguments about the challenge to medication abortion. And that is a case that is trying to severely restrict access to medication abortion. And good news coming out of the argument is that it seems that the court is going to turn away this challenge, that they are going to say that the doctors, the anti-abortion doctors who brought this suit don’t have standing to bring their case because they are not injured by the FDA’s decisions in 2016 and 2021 about how mifepristone should be regulated and how it can be safely used. So there is some good news coming out of the argument, but it’s not all good news.

Melissa Murray I’m not even sure it’s good adjacent. Really. Kate, this argument may be a success in that it seems like the court is going to off ramp this case on standing grounds, but there are some really surprising and genuinely alarming lines of inquiry from some of the justices, and we just wanted to highlight them, because these justices are definitely ceding the ground for what comes next, and specifically these justices. And of course, they are. The Republican justices are signaling that they are very interested, perhaps in a future Republican administration like future, as in November 2024, deciding to go forward to revive a dormant zombie law, the 1873 Comstock Act, and using that long dormant law to enforce a nationwide ban on abortion. So there’s been lots of discussion about the prospect of a nationwide ban going through Congress. Under this logic, you don’t need Congress to do this at all. All you need is a new president and a new DOJ and a new attorney general who is Comstock curious and ready to enforce this zombie law for the first time in a very long time. So the messaging now is they’re not taking your abortion pills today, but wait until November 2024 because there’s another onramp for this court.

Leah Litman Yeah. So just to make clear, right, messaging out of this cases and this is what people are saying and it’s correct, they’re not taking your abortion pills. But the end of that sentence should be they’re not taking your abortion pills yet or in this case.

Kate Shaw Today.

Leah Litman Right. This second, these justices want to revive the Comstock Act as a nationwide ban on abortion that would subject abortion providers and medication, abortion distributors and manufacturers to criminal prosecution and imprisonment. And Congress would not have to do a single thing. This is the topic. This is the topic, right? Even though it’s not an issue in this case, given the questions that the court granted cert on. And yet these justices are so intrigued by it, they couldn’t let it go.

Melissa Murray But don’t take our word for it. Let’s roll the tape.

Leah Litman Here is Sam Alito bringing it up, but trying to do so in a way where you wouldn’t know that he is talking about.

Melissa Murray Casually. Comstock curious.

Leah Litman Right? He’s trying to make it very subtle. Like as subtle as he can be subtle.

Melissa Murray Subtle

Clip Shouldn’t the FDA have at least considered the application of 18 U.S.C. 1461?

Kate Shaw He’s so sneaky. He’s so sneaky because right now it uses the statutory citation. Well, we disagree. We’re not gonna let him get away with it, but he is certainly trying. And you know who else was not going to let him get away with it was the federal government’s lawyer, Elizabeth Prelogar, who, in her answer to alito’s question where he just used the number, said Comstock, because she was, I think, signaling to everyone else in the room and listening to the argument what he was talking about, which was, again, this long dormant, you know, Victorian era law that prohibits the mailing of drugs, devices used for, among other things, immoral purposes that, you know, in the era in which Roe versus Wade was the law of the land, could never have been used for a purpose like this one. But post Dobbs, anything is possible. And Sam is very much interested in that revival. Okay, so let’s just go play Elizabeth Prelogar. Sam refuses to name the law in his question. She answers it and invokes the name Comstock.

Clip So I think that the Comstock provisions don’t fall within FDA’s lane. FDA under the FDA can only maintain restrictions under the Rems program if it’s necessary to ensure safe use in 2021. What FDA determined is you don’t need in person dispensing for safe use. So the FDA did not independently require that Rems restriction. And in fact, it. Couldn’t be imposed once FDA had made that determination. Now, that doesn’t affect other sources of law. FDA was not affirmatively approving mailing in violation of Comstock, even if you interpreted it that way. And we don’t think it means what respondents suggested means.

Melissa Murray Say its name, Sam. All you have to do is say its name. And again, he was not going to be denied his opportunity to be casually Comstock curious. So Justice Alito stayed on this issue like a dog with a bone, signaling that he is very, very interested in the future prospects of the Comstock Act. So here he is in another clip referring to the Comstock Act as a quote unquote, prominent provision. Even though this is a law that has literally been dormant for most of our lifetimes, nearly a century, and has not been enforced or interpreted as a ban on abortion. But nevertheless, let’s hear this discussion of this prominent provision about abortion.

Clip Well, it didn’t say any of that. It didn’t say anything about it. And this is a prominent provision. It’s not, some, obscure subsection of the complicated, obscure law they, they knew about. And everybody in this field knew about it. Shouldn’t they at least address that? You have answers to the arguments that are made on the other side. Shouldn’t the FDA have at least said we should consider those and provide some kind of an explanation?

Melissa Murray And not to be outdone, not to leave his boy in the wind. Justice Thomas decided to tag in to also get a little casually. Comstock curious. Let’s hear him.

Clip The government, the Solicitor General, points out, would not be susceptible to a Comstock problem. But you in your case, you would be. So, how do you respond, to an argument that, mailing your product and advertising it would violate the Comstock act?

Melissa Murray And again, Justice Thomas is the ultimate wingman. So he tagged in repeatedly to hook up his bro. Sam Alito. Here he is once again.

Clip Well, my problem is that you’re private. The government. I understand the government’s argument. But you’re private, and the statute doesn’t have, the sort of safe harbor that you’re, suggesting. And it’s fairly broad, and it specifically covers drugs such as yours.

Melissa Murray He also invited the alliance defending Freedom counsel. Aaron Holly. You might also know her as the wife of a certain Missouri senator who enjoys recreational running. She was the lawyer arguing on behalf of the anti-abortion doctors to limit the access to medication abortion. But Justice Thomas invited her to share a little more about her views about being Comstock curious. So here he is with her.

Clip Miss Holly, I’m sure you heard the answers of the solicitor general and, the counsel counsel for Danko with respect to the Comstock. I’d like you to comment on their answers.

Kate Shaw And to pivot to another justice who said some, you know, eyebrow raising things during the oral argument. We want to play a clip from Justice Amy Coney Barrett, aka Lady Safe Haven. Gesturing, which is a reference to a line of argument she was really curiously fixated on during the Dobbs case, which seemed to suggest that, you know, these so-called safe haven laws that allow you to literally drop a baby at a fire station obviated any problems that might attach to being forced to carry to term an unwanted pregnancy. So that’s Lady safe haven. We may need a new moniker for her during this argument, but she really seemed to be the most interested in pursuing the idea of fetal personhood. The idea that a fetus is a person with the rights and protections of a living person, such that the law is bound to respect the interests and rights of a fetus. And that’s a view that many in the anti-abortion movement have long held and long pursued and are seeking, you know, legal support and recognition for, and I think this was the biggest moment that fetal personhood had ever had in, you know, the halls of one First Street or the federal courts in general. So let’s play that clip here.

Clip You were talking about Doctor Francis, and as I read her allegations, her as her affidavit reads, she said that her partner was forced to perform a DNC when there was a living fetus. And she said she performed a DNC on a woman who was suffering serious complications. But the fact that she performed a dance, she does not necessarily mean that there was a living embryo or a fetus, because you can have a DNC after, you know, a miscarriage.

Melissa Murray Time out for a minute, Kate. Can I just say we predicted this, like we’ve been talking about fetal personhood for a long time. We mentioned it with regard. Are to the Alabama in vitro fertilization case. We talked about it with regard to the Florida Supreme Court oral argument a few weeks ago. We talked about it with regard to the lower court opinions in this case. And we also said there were a lot of fetal personhood Easter eggs in Dobbs. So people who are dismissing us as being like weird harpies who just like to see fetal personhood everywhere, like it’s here, it’s coming.

Kate Shaw Yeah.

Leah Litman Yes. And this is Justice Barrett basically saying, put the Comstock Act, is it in a Dropbox? Right. And let’s just go full on fetal personhood because, right. Fetal personhood would basically say, who cares whether Comstock Act is the law or not. Right? Fetuses are people entitled to rights under the US Constitution and all statutory law. So even if a Democratic Congress came back and repealed this Comstock Act, which, by the way, isn’t an abortion ban, even though Trump and his enablers want to make it one, even if they repealed it, then you would have fetal personhood forward. People like perhaps Justice Barrett saying, who cares, right? Republicans can throw right abortion providers in jail anyway. And this is, again, two years after Dobbs, and we are already on the precipice of this.

Melissa Murray Comstock curious fetal personhood forward. We got all our bases covered.

Leah Litman So, again, just to underscore, when talking to friends and family about this decision, it is a good thing that the court is dismissing this case because these anti-abortion doctors are not injured by the FDA’s determinations about how mifepristone can be safely used. Right. That’s all well and good, but that does not mean this court has somehow become reasonable or moderate, especially on the issue of abortion. Rather, they are signaling what they are inviting and laying the groundwork for future Republican administrations to do.

Melissa Murray Are we, like, 100% sure they’re going to off ramp this.

Leah Litman I am.

Melissa Murray Everything seems to hang on Brett Kavanaugh and like that’s never a great position to be on.

Kate Shaw That’s true. I actually think both because the fact that these doctors clearly lack standing on any defensible conception of article three standing up, is not enough to give us comfort to what is going to do that. But the timing, the election year timing of this case, I think, combined with the facially preposterous standing argument that these doctors have, means that I think a majority of these justices who understand what a shock to the system and the political like season it would be if they all of a sudden radically reduced access to for press don’t, including in states, you know, across the country that do try to protect abortion. I think that they know that would be that the timing here is suboptimal. And for that reason plus the so.

Melissa Murray We said this about Dobbs. I just want to point out.

Kate Shaw It’s true. But I think that the Republican justices who didn’t listen to John Roberts arguments along these lines.

Melissa Murray Which is like all of them.

Kate Shaw Maybe realize he had a point. And so I think I think we’re going to see that here.

Melissa Murray I’m persuaded by your logic. I’m just telling you right now, I am like Charlie Brown with the fuck all these bitches keep taking the football away.

Kate Shaw Important caution

Leah Litman That’s totally fair. And look, it’s totally clear that at least some of them cannot restrain their anti-women anti reproductive freedom fervor. Right? I’m talking about you, Sam Alito.

Melissa Murray Aka Anthony Comstock.

Leah Litman Right. Right. But. Right. I don’t think that there are five who are going to do that again right now on the eve of the election. So just to again underscore this, because, again, the top level line messaging coming out of this case everywhere seems to be they are not taking away your abortion pills. And it’s true, the federal government seems like it’s going to win this case. The court is going to say this particular challenge in this particular case involving medication abortion can’t go anywhere. But note this case could come back with a vengeance, because Judge Kaczmarek has already said that some Republican led states can intervene in the case to themselves. Challenge medication abortion. So who knows whether the case will come back in a year with those plaintiffs.

Kate Shaw And a year from now, depending on how the November election works and a year from now, depending on however the November election goes, the justices might be much less concerned about the political blowback from a decision allowing the challenge to proceed, maybe even ruling against the FDA. So I think that again, the for now, putting even aside fetal personhood and Comstock even this case, this could be an interim ruling that we could well see come out differently in the very near term.

Melissa Murray Almost like the voting rights victory we saw in Allen versus Milligan. That was preceded by actually a major voting rights loss that shaped the election and the midterm election in 2022. But I digress, because I don’t want to continue beating that dead horse, although it’s not as dead as I would like anyway. So I’ll just say here that it seems like the justices are deferring a lot of their firepower for after the election, and Republican candidates and supporters are down for it, because I think they would actually like to keep this whole Comstock curious issue under wraps, so that most of us in the electorate won’t understand that one of the biggest issues in the upcoming election isn’t whether or not there’s going to be a Republican Congress that can pass a nationwide ban, but rather whether they can sneak in a Republican president with a new attorney general who is ready and prepared to revive this zombie law from 1873 and begin enforcing it against individuals providing abortion or distributing medication or even implements used for abortion. And again, they can do all of this without ever getting Congress, and they just don’t want us to know about it.

Leah Litman Indeed. So a longer analysis of this entire case, as well as the other cases the court heard this week, will be forthcoming on our regular episode on Monday. But we wanted to put this out into the world now to equip you to be the best. But actually your and all of your cocktail party and dinner party conversations, because we know you all are talking about this, and people need to know what’s at stake and what the court is and isn’t going to do and what it might do in the future.

Melissa Murray So get in formation.

Kate Shaw All right. We’ll leave it there, and we’ll be back in your ears on Monday morning. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rowell. Audio support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. Thanks to Farrah Safari for substitute producing and Sarah Gibalaska for substitute editing. If you haven’t already, be sure to subscribe to Strict Scrutiny and your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and reviews. It really helps.

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