The Supreme Court on Friday finally waded in to the huge mess that is the abortion pill lawsuit and did something sane: blocked the nonsense restrictions that lower courts wanted to impose on the pill while the case proceeds. So the drug mifepristone remains legally available in the states that haven’t banned abortion and on a gray market in states that have.
To be clear, the justices should have dismissed this case entirely, but did not. Justices Samuel Alito and Clarence Thomas wrote they would have let the restrictions take effect, with Alito arguing that there was no “threat of any real harm” if access to the abortion pill was restricted while the case proceeded. (Alito is the same judge who said 10 months ago when he wrote the opinion overturning Roe v. Wade that abortion should be an issue for states to decide, which clearly turned out to be false and disingenuous.)
The bigger picture though, is that we shouldn’t even be here; this lawsuit was totally bogus. The plaintiffs challenging the decades-old FDA approval of a safe drug only brought the suit only after Roe v. Wade was overturned and filed it in a federal district where there’s only one judge, Matthew Kacsmaryk, an anti-abortion activist who used to work at a right-wing Christian legal firm. Plus, judges can’t even tell the FDA to revoke medications. None of this was on the level. So, as for the people who will applaud the court today, actually no, you do not, under any circumstances, gotta hand it to them.
Medication abortion is a super common method that accounts for more than half of all terminations done in medical settings (54 percent, to be exact, in 2020). Mifepristone is usually taken with misoprostol, but the latter drug can also be used on its own. But anti-abortion activists hate that pills exist and that people can get them by mail, because that helps people evade abortion bans.
Friday’s ruling doesn’t mean abortion pills are safe in the long run—only that the challenge didn’t work this time. Activists will almost certainly keep throwing spaghetti at the wall until they find something that sticks. And even this very case could end up back at the Supreme Court. If I were a betting woman, I’d say SCOTUS won’t take an abortion pill case until the term starting October 2024, so they can release a ruling after the presidential election and save Republicans the electoral backlash. To have upheld the wild lower court decision now, amid multiple judicial scandals, would have launched Supreme Court expansion right onto the Democratic party platform.
This is only a win in that abortion pill access in blue states is preserved for now. Don’t think for a second that it will stay that way.