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The Next Medication Abortion Case Just Has to Be a Little Less Stupid

The most remarkable thing about Alliance for Hippocratic Medicine is that it made it to the Supreme Court in the first place. Apportioning credit and/or blame starts with Matt Kacsmaryk, an anti-abortion activist who in his capacity as a Trump-appointed district court judge signed off on 100 percent of this embarrassing, credulous bullshit. An three-judge panel of the Fifth Circuit Court of Appeals—all Republican appointees—made some revisions to Kacsmaryk’s order, but left the door open for the justices, if they were so inclined, to ban or restrict access to a medication used in two-thirds of all abortions in the United States. This is the inevitable consequence of Trump’s Federalist Society-assisted efforts to remake the federal bench, including a Court now controlled by a six-justice conservative supermajority: The asks are always getting more ambitious and the legal theories more extreme, because conservative lawyers know that if they play enough games officiated by friendly refs, they’ll be able to put wins on the board no matter how long the odds might seem.

After oral argument, the smart money is on the Court tossing this case on standing grounds; as my colleague Madiba Dennie noted earlier this week, when Neil Gorsuch, patron saint of dubious right-wing religious plaintiffs, is openly skeptical about standing, the Court is probably not going to find it. But Justices Clarence Thomas and Samuel Alito used the occasion to boost the idea, popular in Republican circles, that a long-dormant federal obscenity law called the Comstock Act can and should function as a fully-baked, already-on-the-books national abortion ban. Alito in particular could barely contain his excitement, calling Comstock a “prominent” law but referring to it only by its location in the U.S. Code, as if hoping that by hiding behind an arcane-sounding citation to chapter and verse, he’d be able seize more power to make decisions about the health of millions of people without any of them noticing.

Alliance for Hippocratic Medicine is a stupid case brought by deranged weirdo grifters who could not be bothered to put together a coherent argument. The problem is that the next time mifepristone comes before the justices, a less stupid case—perhaps one that rests on a marginally more coherent argument, and that has fewer deranged weirdo grifters attached to it—could very well succeed. For the conservative legal movement, the purpose of AHM is to set the bar for future attacks on medication abortion and reproductive freedom. It won’t take much to clear it.

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