Why a Unanimous Supreme Court Decision Protecting Access to Abortion Medication Mifepristone Means Less Than You Think

A unanimous SCOTUS decision being hailed by major media as a big win for abortion rights advocates is actually something else entirely. This report from an attorney and legal journalist explains why.

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The news seems simple enough: in a shocking 9-0 decision, a Supreme Court with six extremely conservative members just protected an important aspect of abortion rights—access to an abortion medication that’s safe, universally used, and now accounts for the majority of abortions in the United States. Indeed, the drug mifepristone is safer than childbirth or abortion-by-procedure, and the only reason anyone would oppose its sale is because it makes abortions accessible to women, and there are ideologues in America who would rather that women be at the mercy of fate rather than enjoy self-determination.

But today’s Supreme Court decision wasn’t shocking for its unanimity on a hot-button political question, but for a very different reason.

The basis for the unanimous Supreme Court decision in FDA v. Alliance for Hippocratic Medicine (AHM) had nothing to do with the merits of the case, which saw the far-right anti-abortion Alliance for Hippocratic Medicine arguing that the U.S. Food & Drug Administration (FDA) improperly approved mifepristone many years ago and claimed standing to file a lawsuit over this—“standing” being the notion in the law that a given litigant can claim to be an injured party, and therefore has a legally cognizable right to take a matter to court—on the basis that some of its doctors might be forced to treat women harmed by mifepristone against their personal convictions. The problem, of course, is that mifepristone is actually so safe that it’s safer than penicillin or Viagra.

But that wasn’t the basis for AHM losing its case today; rather, AHM lost because the Court found it didn’t have standing to bring this case at all. And that’s what’s shocking.

Specifically, it’s shocking that the Supreme Court even allowed a case to come before it in which all nine Justices believed the moving party didn’t have standing to bring the case in the first place.

Why? Because standing is the first thing decided in every court case, and it is almost always the easiest thing to determine. Which means—given that the Supreme Court takes a vanishingly small number of cases each year, and most cases that come to it take years to get there—that the Court took up an issue that it knew in advance never should have entered any court in America and did so to the detriment of countless other actually worthwhile cases it could have taken.

Why in the world, then, should the Court choose to have this case be one of the only ones in America it hears this year—when there are thousands upon thousands upon thousands of worthy litigants begging for its attention?

One argument, a procedural one, would be that the Court was forced into this position.

Like almost all far-right Trumpist litigants in this era of out-of-control ideologically driven “lawfare”—a phenomenon complained about exclusively by, yet simultaneously almost exclusively caused by, supporters of Donald Trump—the plaintiffs in this case forum-shopped their way to a federal judicial district in north Texas. North Texas is a region of America now so radicalized by Trumpism and—even more troublingly—by QAnonism that its courts can reliably be expected to launch to the appellate pantheon of our legal system new causes of action that ten years ago wouldn’t merely have been laughed out of court, but would have been deemed ridiculous even by far-right activists.

So it’s little surprise AHM won here at the district court level, and only slightly more surprising that Texas’s federal district courts now feed into what the Trumpists have constructed as one of the farthest-right federal circuit courts in America—meaning that all concerned knew that AHM’s rather silly district court victory, when it was appealed, would likely be heard by a panel of Republican-appointed judges. And so it was. In this instance, it was two Trump appointees (and being a Trump appointee has, over the last five years, become the dominant predictor of a federal judge’s lawlessness and/or incompetence) and one George W. Bush appointee.

You won’t be surprised to learn that, in this case, the two Trump appointees granted the FDA’s appeal in part—on the rather obvious if technical grounds that the period for the AHM to challenge an FDA approval made many years ago has lapsed—but also allowed new restrictions on mifepristone to stay in place while the full circuit heard the FDA appeal. Meanwhile, the Bush-appointed judge would have “stayed” (delayed) the lawless district court order so the case could be heard in a reasonable timeframe and at a reasonable pace by the full circuit, a view which—had it prevailed—would have led to AHM being tossed out of court at the circuit level. In that scenario, the Supreme Court would have had no need to hear the case that it decided today at all.

What Trump’s two activist judges were doing, of course, was making a decision that couldn’t possibly be defended—not only ruling for AHM in part but refusing to give their circuit colleagues time to hear the case in the normal course of business—so the FDA would be forced to appeal to the Supreme Court on an accelerated basis (because the district court and circuit panel decision upset the status quo in a way the FDA, but not AHM, had to address immediately), thereby fast-tracking case with no business being in court at all to a U.S. Supreme Court that, as we can tell from its unanimous decision ending the case on standing grounds, had no interest in hearing it right now.

In essence, the Trumpists manufactured a way for a wholly meritless case to jump to the front of the nation’s queue of civil appeals in the hope that doing so would get six (or at least five) Trumpist justices to effectively outlaw most abortions nationwide.

But for all that, the six Trumpist justices didn’t say “no” today. They merely noted that this particular case shouldn’t and couldn’t be brought by these particular litigants.

So a second, alternate view of today’s events would suggest that the Court should have acted much quicker and earlier to keep this case at the circuit level and deny AHM oral arguments or a published Supreme Court decision on a case that should never have been allowed into the district court due to its glaringly obvious standing issue.

So why didn’t it do so? Why treat an obviously illegitimately brought case as legitimate?

The answer lies in the 9-0 decision written by longtime Republican political operative-turned-SCOTUS Justice Brett Kavanaugh.

Recognizing, as does everyone in the legal field, that the Trumpists have now created a special pipeline just for themselves that fast-tracks far-right schemes through far-right activist judges in Texas to a far-right Supreme Court, Justice Kavanaugh wrote his opinion aware that the fact that he was writing such an opinion at all meant that the pipeline run by his former GOP-operative colleagues is humming on all cylinders.

He is aware, in other words, that there is really no way, anymore, to stop a meritless (indeed improperly brought) civil case in its tracks if the MAGAs want it heard by the Supreme Court—especially as there will always be at least a four-person grouping at the Court (Justices Clarence Thomas, Samuel Alito, and two of Brett Kavanaugh, Neil Gorsuch, John Roberts, and Amy Coney Barrett) to vote to take such a case even when it’s patently meritless. {Note: Four Justices must want to hear a case for it to be heard.}

Which is probably why Kavanaugh used his written opinion not to criticize the deeply offensive and outrageous political scheme now being perpetrated and expanded upon by the MAGAs—what I will here call the “Texas Pipeline”—but rather the opposite: to offer them advice on how to exploit our broken, far-right appellate system more efficiently. Indeed, Kavanaugh’s opinion explains to the Trumpists exactly how they’ll need to proceed to get this sort of ploy to work better next time, and of course he was more than willing to join his peers in ruling on this silly case on the basis of standing because—as he and the other ultra-conservative members of this Court are only too aware—ruling in this way leaves the mifepristone issue wholly unresolved, and thus available to come before the Court again. And that appears to be what Kavanaugh and the other five far-right judicial activists on the present Supreme Court are intending.

Keep in mind that it’s become an article of faith on the Right that not only will Trump win the presidency in 2024; not only will the next Justice to retire be chronically ill progressive jurist Sonia Sotomayor; but that the Trumpists in Congress will (a) block any Democratic president from ever getting another SCOTUS nominee confirmed (unless the nominee is replacing a Democratic president-appointed Justice), and (b) will make sure that all Trump nominees are confirmed during the maybe-forever dictatorial regime Trump plans on establishing should he win in November. It isn’t a coincidence that Trump got three SCOTUS nominees seated in just 48 months in office; that was just as cynically and unethically orchestrated as MAGAs’ “Texas Pipeline” is.

So Kavanaugh knows it’s better for this case to come back with no standing issues and perhaps a year from now. So that’s what he and his peers on the Court orchestrated.

They have avoided the creation of any thorny precedent that could hamper such a case down the line; they have made themselves—and therefore, by extension, Trumpism—seem “reasonable” on the matter of abortion in an election year in which their patron Trump is on the ballot and they very much need the abortion issue not to harm him politically; they have bought themselves more time to get to see the back of Justice Sotomayor (necessary because the Trumpist bloc is aware Justice Roberts might not be with them on mifepristone, and that a shocking development could still see one more far-right Justice peeled away, therefore dooming their end-abortion-nationwide cause); they have used a published opinion to send a legally sanctioned message to their ideological peers about how to enhance and properly use the Texas Pipeline in the future; and all it cost them was a ridiculous 9-0 decision on standing that only attorneys would immediately see confirms that the U.S. justice system is utterly destroyed.

Again, this can’t be underscored enough: a case in which standing is found by a 9-0 vote not to exist getting to the Supreme Court is as blaring a warning klaxon as, say, a new restaurant serving ten plates of raw fish to ten food critics it knew were coming.

We might expect such a restaurant to shut down for a period of time after a colossal, even unprecedented mishap of that sort—simply to get its affairs in order—and by the same token, SCOTUS ruling unanimously on a very basic standing issue means that something is gravely wrong with the process by which civil cases are moving through our justice system.

While this bizarre 9-0 decision suited the needs of the Court’s Trumpist bloc just fine because—as we’ve lately seen—it fundamentally doesn’t care how the Supreme Court is perceived so long as it retains absolute power to advance Trumpism nationwide (either through decisions or, when possible, by sending matters to a Congress in the hands of Trumpists), a 9-0 decision on standing is actually not just an unmistakable sign of a broken Court but a whole legal system in unprecedented procedural distress.

Simply put, the Trumpists have weaponized our justice system and turned it into a vehicle for lawfare. Which is precisely why the Trumpists are accusing their political enemies of…

…weaponizing our justice system and turning it into a vehicle for lawfare.

It has now become maybe the most foreseeable rhetorical move among the MAGA “movement”: falsely accuse your political opponents of doing what you yourself are doing in order to make it that much harder for them to credibly accuse you of what you are indeed up to. Rhetorically speaking, this is the cousin of another maneuver: letting your opponent win battles you not only don’t care about but are, in fact, clandestine victories for you so that when the chips are down and a matter you really care about is on the table you can claim to have been rational and reasonable and fair all along. The decision in the AHM case is just this: a strategy session for the Texas Pipeline dressed up as a victory for abortion rights, against the backdrop of a justice system so utterly deranged by far-right ideological pap that a case that should have been laughed out of district court ended up serving as a useful SCOTUS planning sesh for MAGA radicals.

It is not wrong for progressives to be happy when Hell fails to get ten degrees hotter.

But it is not cause for optimism, either.

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