Supreme Court challenges legality of abortion pills
Supreme Court challenges legality of abortion pills

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The pro-choice movement had every reason to be concerned about the Supreme Court hearing.

After all, this was the same high court that overturned 50 years of precedent by overturning Roe, and by a conservative 6-3 majority.

Now, two years later, the same court has given a leg up against an increasingly popular form of medical abortion with a pill called mifepristone.

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Who could stop the judges if they decide to ban these pills, which are especially important in states where abortion is prohibited or severely restricted?

With a single decision, the court could tip the scales in favor of the pro-life movement, cutting off this lifeline for millions of women.

But it didn’t turn out that way.

Abortion Pills in Supreme Court

Tuesday’s oral arguments at the Supreme Court appeared to indicate that most of the justices were against banning the abortion pill. (Getty Images)

Based on the audio of Tuesday’s oral arguments, most justices across the ideological spectrum oppose banning these pills.

With the exception of Sam Alito and Clarence Thomas, leaders of the anti-Roe wing, the justices have made it clear that they want no part of this fight.

More than two decades after the FDA approved the use of mifepristone as safe and effective, it appears that the drug will remain widely available.

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When you have Ketanji Brown Jackson and Neil Gorsuch taking the same point, it’s the judicial equivalent of a flashing green light.

Abortion is a difficult issue for Republicans in the post-Roe era. Democrats have won numerous special elections with candidates competing strongly on the issue. On Tuesday, one such Democrat flipped a Republican seat in the Alabama House of Representatives.

Abortion pill

Boxes of the drug mifepristone sit on a shelf at the West Alabama Women’s Center in Tuscaloosa, Alabama, on March 16, 2022. On Tuesday, March 26, 2024, the U.S. Supreme Court will hear a case that could affect how women gain access to mifepristone, one of two pills used in the nation’s most common type of abortion.

In my Mar-a-Lago interview with Donald Trump, he said that Republicans who take too hard a line on abortion, such as opposing exceptions for rape, incest and the life of the mother, are doomed. Accepting the ban on abortion after 16 weeks of pregnancy, later modified to 15 weeks, he said something that stuck with me: “You have to follow your heart. But you also have to be chosen.”

The stakes are high in the Supreme Court case because mifepristone is now used in 60 percent of all abortions in America.

Skeptical justices expressed concern about the impact on federal regulation if they replaced their views on complex topics overseen by the likes of the Food and Drug Administration.

Anti-abortion demonstration at the Supreme Court after Roe v. Wade

Anti-abortion protesters celebrate outside the Supreme Court in Washington, Friday, June 24, 2022. The Supreme Court ended constitutional protections for abortion that had been in place for nearly 50 years, a decision by its conservative majority to overturn landmark abortion court cases. (AP Photo/Jose Luis Magana) (AP)

Jackson said there was a “significant discrepancy” between the claims made by the anti-abortion doctors and their lawsuit, “seeking an order preventing anyone from having access to these drugs at all.”

Gorsuch added, “This case appears to be a prime example of turning what could be a small lawsuit into a national legislative assembly on an FDA rule or other federal government action.”

The advantage of these pills is that patients can order them by mail to their homes, even in states with highly restrictive laws.

If SCOTUS upholds the appellate ruling, patients would have to get the pills in person and would only be able to use them for seven weeks.

Most of the justices seemed united on the basic issue of standing—that is, standing to sue. They pressed both sides on whether the plaintiffs were in such a position.

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If the high court decides they don’t, they don’t have to deal with any of the thornier issues and can dismiss the case.

But this may turn out to be only a temporary reprieve. If the next case is brought by people of clear reputation, this exit ramp will be closed to the judges.

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As long as there are lawyers and strong moral sentiments on both sides, this kind of litigation will drag on, the legacy of a new and overburdened abortion environment.

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