We Just Got a Hint About Conservatives’ New Supreme Court Strategy on Abortion

On Wednesday, the U.S. Court of Appeals for the 5^th Circuit again voted to reimpose limits on the abortion pill mifepristone. If the court had its way, the clock would turn back to 2016, when patients could get mifepristone for only seven weeks of pregnancy, and only after more than one in-person visit with a physician. The ruling won’t have any immediate impact because the Supreme Court issued a stay last spring that keeps the status quo in place as litigation continues. But even if this ruling doesn’t change anything on the ground, it represents conservatives’ best guess that the Supreme Court is going to go much further than it did in Dobbs in limiting abortion at a national level—even if not necessarily in this case.

This case began when the Alliance for Hippocratic Medicine, a group of anti-abortion doctors, set up shop in Amarillo, Texas, where a judge widely believed to be the most hostile to abortion in the country, Matthew Kacsmaryk, presides. AHM, which is represented by the Christian-right powerhouse Alliance Defending Freedom, argued that the Food and Drug Administration lacked the authority to approve the pill mifepristone all the way back in 2000. Last spring, Kacsmaryk lived up to expectations, issuing a humdinger of an opinion agreeing with this claim and embracing the language of fetal personhood. Not much later, a different 5t^h Circuit panel concluded that the plaintiffs had waited too long to challenge the original approval of mifepristone, but held that the plaintiffs would probably prevail on their claims that the FDA did not have the power to lift restrictions on mifepristone in both 2016 and 2021. The Supreme Court, however, did not seem to be buying any of it. The court issued a stay that keeps the status quo in place as litigation continues.

One of the factors the court considers in issuing a stay is the plaintiffs’ probability of prevailing when the case is all said and done. Most of the justices seem to think this case is doomed.

Given the Supreme Court’s obvious skepticism, judges with more self-restraint might have let this case die. There are explosive claims made by these plaintiffs that many conservatives want the Supreme Court to take up sooner or later. AHM argues that the federal Comstock Act, a 19^th-century anti-vice law, means that the FDA did not have the authority to permit access to mifepristone via telehealth. According to the plaintiffs, that’s because mailing abortion pills is already a federal crime. In fact, if the Comstock Act is interpreted in this light, any abortion violates federal law: No procedure in the nation takes place without a drug or device going through the mail. That argument is not a slam-dunk—it ignores decades of precedent interpreting the statute far more narrowly—but ambitious anti-abortion lawyers still have big plans for Comstock. Based on what the majority of the three-person panel ruled, the 5^th Circuit could be saving this argument for a better case, as they instead ruled on procedural grounds (in a separate opinion partially concurring and dissenting from the panel majority, Trump appointee James C. Ho stated that the Comstock Act meant that it is illegal to send abortion medication via mail). The same wait-and-see game goes for claims that the FDA did not have the authority to loosen restrictions on mifepristone, or even to approve it in the first place.

But the 5^th Circuit, by ruling in part with AHM on procedural grounds, is also is placing a bet that no case is procedurally defective enough for the court that gave us Dobbs. To say the plaintiffs’ case for standing is weak is to put the matter gently. The physicians bringing the case stressed that they had treated patients for mifepristone complications in the past. Since the complication rate for mifepristone is not zero (it stands at roughly 0.3 percent), that meant that some future patients might suffer complications, and might seek care from the doctors bringing the case, and some of those doctors might suffer conscience-based injuries. If you think that sounds speculative, you aren’t wrong. The 5^th Circuit understood this problem and dedicated a whopping three-dozen pages to explaining why against all evidence, these plaintiffs do have standing.

Even the substance of the decision—which would reinstate restrictions in place in 2016—seems intended to lower the temperature, likely to try to make things more palatable for the Supreme Court. The majority refused to address the Comstock Act and steered clear of explicitly pro-life language.

Reading Judge Ho’s partial dissent makes this tactical move that much clearer. Judge Ho described mifepristone as a drug that takes the life of an unborn child. He concluded that the FDA lacked the authority to approve mifepristone in 2000 because—as abortion opponents have long argued—pregnancy is not a disease, but a normal rite of passage. He chided his colleagues for not ruling on the relevance of the Comstock Act and argued that the act does amount to a ban on mailing abortion pills. He argued that physicians treating a patient for post-abortion complications suffer an “aesthetic harm” worthy of redress.

But the differences between the two opinions are strategic, not substantive. The panel members were united in believing that no standing defect will worry this Supreme Court if it has a chance to limit access to abortion. Judge Ho is just ready to say the quiet part out loud—and to press the court to go even further, even faster. In that way, the majority’s opinion may be a snapshot of where the Supreme Court is today—on this case and abortion more broadly. Judge Ho’s opinion is a prediction about where the court is headed—if not in this case, then in the future.

Reimposing 2016 restrictions on mifepristone would have dramatic effects. But as Judge Ho’s opinion makes clear, mifepristone rules are just the beginning. If these plaintiffs have standing, it’s hard to see how conservatives raising other challenges to controversial drugs, such as those used in gender-affirming care or IVF, won’t be able to establish the same thing. And if the Comstock Act means what Judge Ho thinks it does, then a Republican president could seek to treat any abortion anywhere as a federal crime.

What does this augur for the Supreme Court? The plaintiffs’ standing arguments don’t sound any better when the 5^th Circuit makes them. From a procedural standpoint, this case is still a dud. Given this truth—and the fact that the Supreme Court already seems to have its doubts about this case—this is still unlikely to be the case that revolutionizes access to the leading abortion method nationwide.

But the judges on the 5^th Circuit understand who is on the Supreme Court, and they know that any loss is likely to be temporary. This ruling may shift the Overton window—passing off the majority opinion here as a sensible, middle-ground outcome. And if the court isn’t ready to go much further on abortion yet, that will likely change later. Judges with more self-restraint might have let this case go. But as the 5^th Circuit seems to believe that when it comes to this Supreme Court on abortion, there is no reason for self-restraint when you have nothing to lose.