That of the Supreme Court decision on mifepristone June 13 ended a challenge to the drug used in more than half of all abortions in the United States. But anti-abortion groups are already preparing their next line of attack.
New groups of plaintiffs could try to establish standing where Food and Drug Administration doctors versus the Alliance for Hippocratic Medicine failed. But if Donald Trump wins the 2024 election, those demands could be much less important to abortion foes: Conservatives already have detailed plans to use executive power to impose national limits on abortion.
The plaintiffs in the case FDA v. Alliance presented two sets of claims. First, they challenged the agency's overall authority to approve and subsequently lift restrictions on mifepristone. The plaintiffs also argued that the FDA did not have the power to allow patients to receive the pills in the mail because the federal Comstock Act, a 19th-century obscenity law, includes a ban on mailing and receiving abortion-related items.
In holding that the Alliance plaintiffs had no standing to sue, the Supreme Court did not say a word about the merits of any of those claims. So it's no surprise that other plaintiffs are trying to take them back to court. The main contenders are the states of Kansas, Missouri and Idaho, which had attempted to intervene in the case, a request rejected by The Supreme Court.
The states' Attorneys general have suggested that they will continue the litigation, with a new argument about the position. A preview of that claim appeared in the states' petition to intervene: They argued that because their citizens could obtain mifepristone from doctors outside the state, the states' own interests were affected. Medicaid beneficiaries who suffered complications from mifepristone were imposing costs on state medical systems, they added, and the availability of mifepristone made it difficult to manufacture and implement. abortion bans.
There may be problems with the states' arguments for coming forward as well. Patients could experience complications if they take mifepristone, which could impose costs on states. This doesn't sound all that different from the weak assumptions on which the Alliance plaintiffs relied. And what about Missouri and Idaho's supposed sovereign interest in enforcing their abortion bans when other states allow it? The court's answer to the Alliance doctors appears to apply: “A plaintiff's desire to make a drug less available to others does not establish standing to sue.”
Kansas' case for standing firm is even more puzzling. Abortion is legal in Kansas up to 22 weeks, although with restrictions. Just over a month after Roe was overturned, Kansans expressly voted against amending their state constitution to say there was no right to abortion. How will the State argue that it is harmed by the approval of mifepristone when its own voters chose to preserve access to abortion?
Whatever the fate of the case brought by Alliance doctors, abortion foes and conservatives understand that the war on mifepristone and medical abortion cannot depend solely on litigation.. For example, Louisiana recently passed a law classifying mifepristone and misoprostol, another drug used in medication abortion, as controlled substances, making it easier for the state to monitor patients, doctors and pharmacies and punish anyone found guilty. possession of medications. without prescription. Idaho passed the so-called trafficking law that criminalizes those who help minors travel out of state or obtain abortion pills. without parental consent.
But even these types of strategies may be much less important if Donald Trump wins a second term. The Heritage Foundation and a coalition of more than 100 conservative groups have laid out a detailed plan, known as Project 2025, for a second Trump administration. The plan begins with a call for the FDA to “revoke its approval of chemical abortion drugs,” including mifepristone, or, at a minimum, eliminate telehealth. option for drug.
Thousands of abortions can be performed each month in states that prohibit the procedure because the telehealth option allows patients to fill a prescription and obtain the pills by mail. With a Trump appointee as secretary of Health and Human Services, and another heading the FDA, the government could approach mifepristone differently without the pressure of a lawsuit. Some legal scholars argue that the structural features of the federal Food and Drug Act could even allow the HHS secretary alone to overrule FDA scientists.
Then there is the old Comstock Act, moribund but still in effect. Gene Hamilton, a leading figure in the first trump administration, argues in the Project 2025 plan that the Justice Department could simply dust off the 151-year-old law and begin criminally prosecuting the sending or receiving of mifepristone. If the Supreme Court accepts this interpretation of the Comstock Act, despite its flaws, such executive action would resolve the thorny questions of standing raised in Alliance.
The Supreme Court diverted the Alliance's case against mifepristone. It's entirely possible we'll see it reappear in some form on the court docket next year. But whatever form Alliance 2.0 takes, in the fight for a national abortion ban, it is unlikely to be the main event.
Mary Ziegler is a law professor at UC Davis and author of “Roe: The History of a National Obsession.”
