The Abortion Pill Stays Legal. But for How Long?

Rarely has a straightforward 9-0 decision at the Supreme Court felt as unsettling as it did on Thursday.

The justices’ unanimous ruling, in F.D.A. v. Alliance for Hippocratic Medicine, rejected a challenge to the most commonly used abortion pill, but it did so only on procedural grounds, without considering the merits of the lawsuit. That means another challenge to the drug, mifepristone, will probably reach the court before long. Based on the right-wing supermajority’s open hostility to reproductive rights, there’s good reason to worry.

For now, at least, and purely as a matter of law, the justices got it right, which these days is saying something.

The case decided on Thursday was brought by a group of associations and doctors who oppose abortion and argued that mifepristone is unsafe for the women who use it. They wanted the courts to overturn recently instituted Food and Drug Administration rules that made mifepristone easier to get and use, so they maneuvered their case in front of a sympathetic federal judge in Texas, Matthew Kacsmaryk, who has publicly opposed abortion and ruled in the doctors’ favor. The Fifth Circuit Court of Appeals, which has somehow figured out how to out-radical this Supreme Court, upheld much of Judge Kacsmaryk’s decision.

The justices tossed the case for a simple reason: The plaintiffs could not show that they had personally suffered harm from the F.D.A.’s approval of mifepristone. This showing is a fundamental requirement of standing, the judicial doctrine that outlines who is qualified to bring a lawsuit.

The court quoted former Justice Antonin Scalia’s description of this requirement as “What’s it to you?” In this case, it’s nothing, as Justice Brett Kavanaugh pointed out in the court’s opinion. Because they oppose abortion, the doctors neither use nor prescribe mifepristone, and the F.D.A. hasn’t required them to do or not do anything. The doctors could not even show a single instance in which they were forced to perform an abortion or even provide abortion-related services against their will.