Anti-mifepristone argument too dumb for even Trump nominees to stomach

Where the law is determinate, judges will ignore it only when they have very strong policy preferences and the arrogance to believe they trump everything. In the mifepristone case, it looks like only Alito and perhaps Thomas will fall into this category:

Mary Ziegler, a law professor at the University of California at Davis who specializes in abortion, said she expects the Supreme Court to rule on standing and preserve access to mifepristone.

“Pretty clearly it seems a majority don’t think these people have standing,” she said, noting that Justice Samuel A. Alito Jr. appeared to be the only one persuaded by the Alliance Defending Freedom’s arguments about standing.

The other big takeaway, she said, was the emphasis that Justices Clarence Thomas and Alito placed on the Comstock laws, long dormant laws from the 1800s that prohibit the mailing of “obscene” materials, including materials used for abortions.

Ziegler predicted that Alito and Thomas would write dissenting opinions arguing that Comstock “is very much alive — and that it bars the mailing of at least abortion pills and maybe much more.”

Interpreting the Comstock Act as banning abortion nationwide — another legally nonsensical claim — it the holy grail of the American anti-abortion movement, and looks like they have 3 votes to go.

Alito’s argument about why doctors who are not affected in any way by mifepristone being available have standing to challenge the FDA is…less than persuasive:

Sam Alito: "I have great respect for Article 3" pic.twitter.com/0LFxb2MSyQ— Leah Litman (@LeahLitman) March 26, 2024

If your argument that an approved drug is so dangerous that the judiciary should usurp the FDA and revoke the approval cannot find a single person adversely affected by the drug to bring the suit, I believe the term for this is “self-refutation.”

This is even more farcical if you know that Alito has written multiple lengthy opinions asserting that abortion clinics do not have standing to challenge abortion statutes that would cause them to close down. I am once again remembering the affable Republican lawyer who went on at some length to me in 2006 about how liberals should be thrilled to get Sam Alito rather than some out-of-control reactionary.

Anyway, a bad day for Washington’s fash power couple is a good day for the United States.