SCRUTINY LEVEL: STRICT

Which way will the Supreme Court rule on the biggest abortion case since Dobbs? We turned to an expert court-watcher to find out.

Today the Supreme Court heard oral arguments on Food and Drug Administration v. Alliance for Hippocratic Medicine, a case challenging expanded access to medical abortion with the drug mifepristone. For expert analysis, we called Leah Litman, a professor of law at the University of Michigan Law School, and co-host of Crooked’s Strict Scrutiny podcast. Her view, in short: the justices appear unlikely to dramatically restrict access to mifepristone over this case.

Here’s that conversation.

Q: There was a lot of argument about “standing”… the question whether this group of plaintiffs, who are anti-choice doctors trying to challenge the FDA, are even qualified to sue in the first place. What was important?

LITMAN: There were, I think, at least six justices who were skeptical of the idea that these doctors had standing to bring their case in the first place. You need to show that what the FDA is doing is likely to cause you an injury in the future. And these doctors, it was clear, just can’t do that. They have not shown that any one particular doctor is likely to be called upon to do something like providing procedural abortion, or facilitating a medication abortion, such that what the FDA is doing right now with respect to regulating mifepristone injures them. em. So I think again, like it’s clear, at least six justices are there. 

Q: What did you hear today that was most important about the merits of the case?

LITMAN: On the merits, there are at least two justices on the court who are interested in an issue that is not actually present in this case, but which concerns the interpretation of the Comstock Act, 1873 Victorian-era law that these justices say could allow a Republican president and Republican Attorney General to criminally prosecute—throw in jail—abortion providers and distributors and manufacturers of medication abortion. That is terrifying.

Q. Is there any real chance here that justices do something drastic, like ban mifepristone or at least highly restrict it? 

LITMAN: There’s no chance they will ban mifepristone, because they did not actually agree to hear that aspect of the case. And I think from the oral argument, it is exceedingly, exceedingly unlikely that they will do anything to dramatically restrict it, or even temporarily interfere with its access, in this particular decision at this moment. 

Q. Why is access to mifepristone so important, especially here in the post-Dobbs era? 

LITMAN: Medication abortion is the most common method of abortion in the United States. It avoids a procedure. You can take it at home, and some people prefer that. And I think particularly in a post Dobbs era, if you are living in a reproductive desert in a state that restricts abortion, it is in some cases easier, potentially, to obtain medication abortion than it is to go out of state in order to obtain a procedural abortion. And so medication abortion provides a way to access abortion in the current patchwork of laws, which is precisely why these anti-abortion doctors are trying to eliminate it and restrict it. 

Q. Supreme Court justices are aware of the political disaster that Dobbs has been for the GOP since 2022. Do you think conservatives are going to avoid restricting mifepristone, in a decision that would anger women even more just a couple of months before the election?

LITMAN: Yes, absolutely. I think it’s a combination of how legally baseless and factually baseless these claims are, combined with the fact that they reach the Supreme Court right before the 2024 presidential election, after the court saw what happened in Dobbs. But I think the danger in this case is that people take the court’s decision, dismissing the case by these doctors for lack of standing and think: “Oh, the court learned its lesson. it’s going to be reasonable. Now, I have access to medication abortion now for all perpetuity.” That is not what is going to happen as a result of this case.