The justices are sceptical that the plaintiffs have “standing” to challenge mifepristone
were thrilled when Donald Trump won the presidency in 2016. Mr Trump had promised to appoint justices who would “automatically” overturnthe 1973 case that protected reproductive rights. Three appointments later, the Supreme Court did just that inBut two years on, an oral argument on March 26th concerning mifepristone—a medication used in 63% of abortions in America—bodes ill for those hoping the court will help them keep limiting access to abortion care. At least for now.
Colloquy about “standing”, or a lack thereof, consumed perhaps three-quarters of the 90-minute hearing. Justices Elena Kagan and Amy Coney Barrett teamed up to demonstrate that even Ms Hawley’s two exemplars—Dr Christina Francis and Dr Ingrid Skop—had not suffered a concrete injury. Dr Francis may have had a patient who needed surgical attention after a complication from taking mifepristone, but she never raised an objection to treating her, Justice Kagan pointed out.
Several justices explored Ms Prelogar’s claim that federal law provides “conscience protections” that “would guard against the injury the doctors face”. Justices Barrett and Brett Kavanaugh seemed satisfied with her assurance that the government would not force a doctor with an objection to ending fetal life to participate in an abortion.
Two justices seem ready to go significantly further. Justices Alito and Thomas invoked the Comstock Act, a law from 1873 that bans sending, among other “lewd” things, abortion medications and materials through the post. In 2022 the White House’s Office of Legal Counsel said that this 150-year-old law only prohibits posting such materials to people who will use them unlawfully. But Justice Alito was incredulous that thedid not at least mention the law when regulating mifepristone.
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