Is This the Supreme Court's Next Big Abortion Case?
Plus: An impressive book by a Supreme Court justice.
Last year, the U.S. Supreme Court unanimously rejected an effort by anti-abortion activists to rescind the Food and Drug Administration's (FDA) approval of the abortion drug mifepristone, holding that the activists lacked legal standing to challenge the determination made by federal regulators that the pill was safe and effective for use.
Now, a group of Republican-led states is seeking to revive the case, claiming that their respective state bans on abortion are being undermined by the nationwide mail-order availability of the abortion pill. If these states can convince the lower courts that they possess the requisite legal standing to sue, their case against mifepristone could easily end up back before the Supreme Court.
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The case is Missouri v. FDA. After the Supreme Court's 2024 ruling in FDA v. Alliance for Hippocratic Medicine, which said that anti-abortion groups and activists "do not have standing to sue simply because others are allowed to engage in certain activities," the states of Missouri, Kansas, and Idaho crafted their own updated legal challenge, which focused on the alleged harms suffered by the states themselves. This strategy was concocted for the purpose of passing muster under the rationale of the Court's 2024 decision.
Last week, Florida and Texas filed a motion seeking to join that lawsuit. In addition to repeating the types of arguments first made by the anti-abortion Alliance for Hippocratic Medicine—such as the assertion that the FDA's original approval of mifepristone "did not rest on a good faith analysis of the drug's anticipated effect on public health"—Florida and Texas argue that the FDA has enabled a "mail-order abortion economy in all 50 states" that has forced anti-abortion states "to divert resources to address the explosion of abortion drugs mailed to their residents" from out of state. In other words, Florida and Texas want the federal courts to impose a uniform national standard that eliminates access to abortion pills in all 50 states in order to keep those pills from reaching Florida and Texas.
Since the Supreme Court never actually ruled on the merits of whether or not the FDA's original authorization of mifepristone was proper, this state-led lawsuit could provide the Court with a more acceptable vehicle for doing so, assuming that the case manages to move sufficiently forward in the lower courts. On the other hand, if the Supreme Court is truly serious about leaving the matter of abortion up to the states, it will, when the time comes, reject this obvious effort by anti-abortion states to control what happens inside of states where abortion remains legal.
Missouri v. FDA is still in its early stages at this point, but it's definitely a case to watch. Depending on how things shake out in the months ahead, it could become the Supreme Court's next big abortion battle.
Odds & Ends: An Impressive Book by a Supreme Court Justice
The recent news that Supreme Court Justice Amy Coney Barrett will be publishing a book this fall, titled Listening to the Law: Reflections on the Court and the Constitution, got me thinking about some of my favorite entries in the niche literary genre of books written by SCOTUS members. To my surprise, the first book that sprang to mind, and then actually maintained something of a lead even after further reflection, was Stephen Breyer's slim 2021 volume The Authority of the Court and the Peril of Politics.
Thinking of Breyer's book first surprised me because I am not exactly Breyer's biggest fan. However, as I noted in my review of what I called his "timely and important" book, the liberal justice offered an eloquent and learned argument against court packing that was all the more effective because it was directed against his "side" of the political divide. "The 83-year-old Supreme Court justice is well aware that many modern liberals want President Joe Biden to pack the Court with new members for the express purpose of creating a new liberal supermajority," I wrote. "Breyer thinks those court packers are being both dimwitted and shortsighted."
Breyer took a lot of flack at the time from liberal activists over his anti-court packing position. His commitment to principle over partisanship impressed me then, and still impresses me now.
