Remarkably enough, the Supreme Court came back with a decision the other day in the case about abortion medications — FDA v. Alliance for Hippocratic Medicine — that threw out the attempt of a group of anti-abortion doctors to ban the FDA-approved drug Mifepristone. This drug, in combination with Misoprostol, is the pill that women can use for a medication abortion. Mifepristone blocks a hormone in a woman’s body which ends the pregnancy; Misoprostol then causes cramping and bleeding that makes the pregnancy tissue come out of a woman’s uterus. (This is not a “morning-after pill” like Plan B which prevents pregnancy in the first place.)
The plaintiff’s in this case are the Alliance for Hippocratic Medicine, the American Association of Pro-Life Obstetricians and Gynecologists, the American College of Pediatricians, and Christian Medical and Dental Associations, as well as four individual doctors. The plaintiffs were represented by the Christian legal advocacy group Alliance Defending Freedom.
In a unanimous decision, the Court (in an opinion authored by Brett Kavanaugh) held that the plaintiff’s did not have “standing” — the notion that you have to be injured in some direct way before you can bring a case into court. So, for example, if your neighbor was in a car accident and you think they should sue the other driver, you cannot bring that suit on their behalf (if they don’t want to do it). They have to do it themselves, because they are the party that was injured, even if their injury has some indirect impact on you.
Legal commentators have speculated about two things: first, that the conservatives on the court did not want to hand out another provocative anti-abortion case right before an election, something that would fire up the Democratic base; second, that this case could come back at a later date, after the election, and the justices could have another crack at it on the merits.
I don’t know.
Yes, there are three states — Idaho, Missouri, and Kansas — who through their Republican attorney generals had recently joined the case.
But how do those three states have standing?
They can ban Mifepristone in their own states, I suppose, if they haven’t already done so. But how do they have standing to help decide what happens in California, New York or Massachusetts?
I haven’t seen enough discussion of this question, even by the legal “experts” that were interviewed in connection with this case.
For one thing, these three states would have to prove why Missouri, Idaho and Kansas should have a case heard in a federal district court in Texas, where the plaintiffs went judge-shopping to get the case in front of ultra-conservative judge Matthew Kacsmaryk.
We’ll have to see, of course, but for now it’s a victory for women and for anyone who wants to have a choice over the pregnancy decision.
Even so, it’s another reason to vote for Joe Biden, so that we can finally re-balance this court.