The Supreme Court handed down a brief order on Friday in Danco Laboratories v. Alliance for Hippocratic Medicine, a lawsuit asking the federal judiciary to effectively ban mifepristone, a drug used in more than half of all abortions in the United States.
The most immediate impact of the Court’s new order is that the justices voted to stay lower court decisions that would have cut off access to mifepristone, at least for the time being. That means that mifepristone remains available, and that patients who live in states where abortion is legal may still obtain the drug in the same way they would have obtained it if this lawsuit had never been filed.
The Court did not disclose how each justice voted, but only two justices, Clarence Thomas and Samuel Alito, publicly noted their dissents.
This stay, however, is only temporary. The case will still need to be litigated in the conservative United States Court of Appeals for the Fifth Circuit, and it may need to be heard by the Supreme Court again. Nevertheless, Friday’s order means that mifepristone will remain available until the last court to hear this case issues its final decision.
The plaintiffs’ arguments in this case are laughably weak. They ask the Court to defy longstanding legal principles establishing that judges may not second-guess the FDA’s scientific judgments about which drugs are safe enough to be prescribed in the United States. Moreover, no federal court has jurisdiction to even hear this case in the first place.
As attorney Adam Unikowsky, a former law clerk to Justice Antonin Scalia, has written, “if the subject matter of this case were anything other than abortion, the plaintiffs would have no chance of succeeding in the Supreme Court.”
But this Court’s GOP-appointed majority has a history of manipulating longstanding legal principles in order to achieve anti-abortion results. Most notably, in Whole Woman’s Health v. Jackson (2021), the Supreme Court announced a new legal rule that, if taken seriously, would allow any state to nullify any constitutional right — a result that allowed the Court to shield a Texas anti-abortion law from judicial review.
That said, the Court’s decision to temporarily keep mifepristone legal is a hopeful sign that the justices will ultimately decide not to ban mifepristone. And there are other reasons to believe that a majority of the Court might reject this entirely meritless attack on abortion rights.
Republican elites appear ambivalent about banning mifepristone
Although a supermajority of the justices were appointed by Republican presidents, not all of these justices are reliable votes for literally any outcome preferred by conservative litigants. To the contrary, the Court’s current majority tends to track the views of Republican elites in other positions of power and influence.
To be sure, the Court’s six Republican appointees frequently call for massive rightward shifts in the law. And they often do so based on legal theories rejected by most legal experts. But in recent high-profile instances, the Court has done so after a consensus emerged among Republican elites that the law should be changed.
As Yale law professor Jack Balkin has written, “law, and especially constitutional law, is grounded in judgments by legal professionals about what is reasonable.” A legal argument can “move from off the wall to on the wall because people and institutions are willing to put their reputations on the line and state that an argument formerly thought beyond the pale is not crazy at all, but is actually a pretty good legal argument.”
To see this phenomenon in action, consider two high-profile lawsuits asking the Supreme Court to repeal the Affordable Care Act: NFIB v. Sebelius (2012) and California v. Texas (2021).
When the NFIB case was filed shortly after Obamacare became law, it was widely viewed by legal experts as so absurd that few were willing to defend it. At a 2010 panel on the lawsuit hosted by the University of Washington, for example, the moderator announced that “we tried very hard to get a professor who could come and who thinks this is flat-out unconstitutional, but there are relatively few of them, and they are in great demand.”
But elected Republican leaders, GOP-aligned media outlets, and powerful legal organizations like the Federalist Society spent two years touting the NFIB plaintiffs’ arguments against Obamacare and giving prominent platforms to lawyers who supported these arguments.
The result was that four justices, all Republicans, voted in NFIB to repeal the Affordable Care Act in its entirety. And a fifth, Chief Justice John Roberts, struck a deal that severely weakened the law by permitting states to opt out of Obamacare’s Medicaid expansion.
A very different drama played out nine years later, however, in the Texas case. As that case rose through the courts, leading voices in the GOP and its allied media outlets mocked the plaintiffs’ legal theory. The Wall Street Journal’s editorial board labeled this lawsuit the “Texas Obamacare Blunder.” Yuval Levin, a prominent conservative policy wonk, wrote in the National Review that the Texas lawsuit “doesn’t even merit being called silly. It’s ridiculous.” Even Senate Republican Leader Mitch McConnell (R-KY) claimed that “no one believes the Supreme Court is going to strike down the Affordable Care Act” while the Court was considering the Texas case.
The Supreme Court ultimately voted 7-2 to dismiss the Texas case, ruling that federal courts didn’t even have jurisdiction to hear it.
So far, Republican reaction to the Hippocratic Medicine case more closely resembles the GOP reaction to Texas than NFIB. The Wall Street Journal’s editorial board conceded that this lawsuit should fail. And at least one Republican member of Congress, Rep. Nancy Mace (R-SC), even argued that the Biden administration should ignore one of the lower court decisions attacking mifepristone, telling CNN that this lawsuit “should just be thrown out quite frankly.”
This tepid reaction by many Republican elites suggests that, if the Supreme Court’s GOP-appointed majority does decide to go out on a limb and ban mifepristone, then they will do so without consistent support from their fellow Republicans in other positions of power. Historically, even the Court’s current majority has been reluctant to go this far out of a limb on their own.
If the Supreme Court does decide to attack mifepristone, that will have catastrophic consequences throughout the health care system
An amicus brief filed by many key players in the pharmaceutical industry warns that, should the Supreme Court embrace the lower courts’ attacks on mifepristone, the entire health care system is likely to suffer terribly.
That’s because the lower courts required the Food and Drug Administration to jump through so many needless hoops before it could approve mifepristone — or any drug, for that matter — that, the brief’s authors wrote, “it is unlikely that a single one” of the thousands of drugs the FDA has approved in the past “would have been approved” if those drugs had “been developed or reviewed by FDA under the lower courts’ approach.”
The Hippocratic Medicine case, in other words, doesn’t just threaten access to abortion. It could potentially toss the FDA’s entire drug approval process into turmoil, threatening access to everything from antibiotics to blood pressure medication to cancer-fighting drugs.