Court rejects frivolous argument brought by anti-abortion lobby while leaving others open

In a classic case of a “liberal” outcome created because lower courts fully or partially embraced completely lawless arguments brought by crank reactionary litigators, the Supreme Court today rejected the challenge to the FDA’s approval and expanded access to Mifepristone. This is a good outcome — there was always the possibility that the Court could have accepted 5CA’s more limited usurpation of the FDA’s authority, which still would have had major consequences (most notably allowing medication abortions for only 7 weeks instead of 10, taking generic mifepristone off the market, and requiring in-person vists the pandemic had shown were not necessary.) And it was unanimous (through Kavanaugh), so the most interesting remaining question about the case is whether Roberts had to work Alito to persuade him from not issuing some kind of insane dissent like Earl Warren did with Stanley Reed in Brown. As you might guess, the unanimity was achieved with a holding that the plaintiffs lacked standing:

The plaintiffs have sincere legal, moral, ideological, and policy objections to elective abortion and to FDA’s relaxed
regulation of mifepristone. But under Article III of the Constitution, those kinds of objections alone do not establish a justiciable case or controversy in federal court. Here, the plaintiffs have failed to demonstrate that FDA’s relaxed regulatory requirements likely would cause them to suffer an injury in fact. For that reason, the federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions.

While I would have preferred a holding on the merits that preempted further challenges to the approval of mifepristone, the denial of standing is perfectly sound on its own merits. We should remember, though, that this procedural ruling doesn’t preempt another challenge to the availability of mifepristone that is looming:

Third, the Supreme Court conspicuously declined to address an argument at the heart of the plaintiffs’ theory: that the Comstock Act of 1873 imposes a nationwide ban on medication abortion. Conservative lawyers and judges are foaming at the mouth to revive this zombie anti-vice law, which puritanical male legislators enacted during a fit of moral panic about women’s equality. Jonathan Mitchell, one of Trump’s top lawyers, has already said he believes that the former president can and will wield it as a total abortion ban if he secures a second term. Trump, whose views on abortion regulation continue to be incomprehensible, nevertheless appears to be in tacit agreement with anti-abortion advocates that he will weaponize this law should he gain office. Although Justices Samuel Alito and Clarence Thomas brought up Comstock at oral argument in this case, SCOTUS has ducked the matter for now, possibly in an effort to stop it from becoming a campaign issue. Should Trump prevail, Comstock will roar back with a vengeance.

Winning this case is a lot better than losing, but this is very far from being over even as a legal issue.