At the U.S. Supreme Court these days, judicial liberals don’t have much clout. The real fights mostly take place between the court’s far-right and its more traditional conservatives.
Tuesday’s argument over abortion pills provided a perfect example, and it highlighted the stakes the 2024 presidential election will have for the court. In particular, it illustrated one of the ways a second term for former President Trump could dramatically differ from his first, with huge consequences for abortion rights, among other topics.
Abortion endangers the GOP
The political backdrop to the high court’s argument is clear: The politics of abortion continue to bedevil Republicans.
The GOP achieved a long-standing goal in 2022 when the newly reinforced conservative majority on the court overturned Roe vs. Wade, the ruling that for nearly a half-century had guaranteed abortion rights nationwide. The court’s decision in Dobbs vs. Jackson Women’s Health tossed abortion policy back to the states, 15 of which now ban all or nearly all abortions, with six more imposing tight restrictions.
Those bans have not succeeded in reducing the number of abortions in the U.S., largely because of the wide availability of abortion pills. But they have generated a wave of anger among voters, especially women, that has sunk Republican candidates in swing districts and states.
The most recent example came a few hours after the high court argument, when a Democrat, Marilyn Lands, won a special election to fill a largely suburban state legislative district in northern Alabama. Lands had focused her campaign on reproductive rights.
Her landslide victory — a 25-point margin in a closely divided district — was the first test of voter sentiment since the Alabama Supreme Court’s ruling that frozen embryos created by in vitro fertilization should be considered children under state law, a decision that the state legislature hurriedly tried to overturn after furious voter reaction.
The conservative split
The lesson that many traditional conservatives have drawn from their election defeats is that the GOP should ease away from opposition on abortion. That may have influenced some of the Republican-appointed justices as they considered Tuesday’s challenge to the Food and Drug Administration’s rules that allow widespread dispensing of mifepristone: They treated the case like an unwelcome guest — to be ushered out as rapidly as possible with a stern admonition not to return.
To the justices on the far right, it represented something else — a missed opportunity for now and a chance to set down markers for the future.
Representing the Biden administration, Solicitor General Elizabeth B. Prelogar argued that the antiabortion group seeking to overturn the rules lacked standing to bring the case.
Standing refers to the legal principle that to challenge a law or rule, you have to be affected by it — you can’t just have a generalized grievance.
The antiabortion doctors who brought the case claimed they were affected because at some point, one of them might be in an emergency room when a woman who had taken mifepristone would show up seeking treatment for heavy bleeding, which is an occasional effect of the drug. If that happened, they would be forced to choose between their conscientious objections to abortion and their duty to care for a patient, they argued.
Prelogar said those claims “rest on a long chain of remote contingencies” that didn’t come “within a hundred miles” of establishing standing.
Most of the justices appeared to agree.
Even if the doctors had standing, the proper remedy for their claim would be to say that they could not be required to participate in an abortion — a right they already have under federal law, said Justice Ketanji Brown Jackson.
Justice Neil M. Gorsuch agreed. The case was “a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an F.D.A. rule or any other federal government action,” he said. He didn’t mean that as a compliment.
Gorsuch, of course, was appointed to the court by Trump. Another Trump appointee, Justice Amy Coney Barrett, also appeared skeptical that the doctors had standing. The third Trump appointee, Justice Brett M. Kavanugh, said very little, but the one question he asked suggested that he, too, would likely side with the FDA.
How Trump could ban abortion pills
Justices Samuel A. Alito Jr. and Clarence Thomas were the only members of the court who seemed open to the arguments presented by Erin Hawley, the lawyer representing the antiabortion group.
In their questions, both also circled back to a related legal issue, the potential impact of an 1873 law known as the Comstock Act. That law, best known for banning “lewd” material from the mail, also bans any “article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use it or apply it for producing abortion.”
The law hasn’t been enforced in decades, but up through the 1930s, it was repeatedly used to prosecute people for mailing birth control devices or even medical texts about contraception.
In 2022, the Justice Department issued a formal ruling that the law wasn’t applicable to mifepristone because the drug has medical uses beyond abortion.
That ruling, however, could be reversed by a future administration. Antiabortion groups have made clear that if Trump wins another term, they’ll make the Comstock Act a high priority.
The Comstock law is “fairly broad, and it specifically covers drugs such as yours,” Thomas said at one point to Jessica Ellsworth, the lawyer representing Danco Laboratories, which makes mifepristone. His remark sounded like a warning.
Why two Bush justices, not Trump ones, make up the far right
The comments by Gorsuch and Barrett on the one side and Thomas and Alito on the other highlighted a paradoxical reality of the current court: The justices Trump named to the court aren’t the ones most likely to side with the MAGA movement’s priorities. Instead, the far-right members, Thomas and Alito, were appointed by two avatars of the pre-Trump GOP establishment — the Presidents Bush, father and son.
That doesn’t mean that the three Trump appointees are moderates. They’re solidly conservative. But they are establishment conservatives.
During Trump’s tenure, the process of picking and confirming Supreme Court justices was largely driven by Senate Majority Leader Mitch McConnell of Kentucky, working with Trump’s White House counsel, Don McGahn. Trump had relatively little to do with it beyond ratifying the ultimate selections.
McConnell and McGahn looked for justices in their ideological image, not Trump’s.
By contrast, George H.W. Bush chose Thomas without knowing much about him. He wanted a Black jurist to replace Justice Thurgood Marshall, and he didn’t have a lot of Black Republican judges to choose from. The full scope of the new justice’s ideology was unknown when he was named.
Alito was more of a known commodity when George W. Bush appointed him, but he wasn’t the president’s first choice. Bush had tried to put his counsel, Harriet Miers, on the court. But he had to withdraw Miers’ name after intense opposition from the right. The choice of Alito was an effort at political damage control.
But McConnell won’t be Senate Republican leader after this year — he’s already announced his plans to step down. And Trump isn’t likely to appoint anyone to the White House staff like McGahn, who repeatedly thwarted him on key issues.
Trump owes his political survival to the steadfast support of the right wing, especially conservative, evangelical Christians. Whatever constraints the former GOP establishment managed to impose on him before would be largely absent in a second term.
Hence the main lesson from Tuesday: The high court has moved sharply to the right already, but it could go a lot further if Trump gets another term.
