Republicans Have a New Plan to Save the Supreme Court Abortion Pill Case

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On the eve of this month’s off-year elections, the top lawyers in three states threw something of a Hail Mary pass: They went to the courtroom of one of the most notorious Trump judges in the country and asked to join the lawsuit that could revoke FDA approval of the abortion pill, mifepristone. That suit was filed almost a year ago, and we’re currently waiting to see if the Supreme Court will take up the case on appeal. Experts agree that the anti-abortion doctors don’t have standing to sue, and many people think the court will agree to hear the case and then rule against the doctors.

That fact may explain why, on Friday, Nov. 3, the Republican attorneys general from Missouri, Kansas, and Idaho filed a motion to intervene in Judge Matthew Kacsmaryk’s court, claiming their states are also being injured by the approval of the abortion pill back in 2000. These Republican AGs are swooping in to join the case at the eleventh hour, and it certainly looks like they’re worried about SCOTUS ruling against the plaintiffs, doctors from the shadowy Alliance for Hippocratic Medicine.

Andrew Bailey of Missouri, Kris Kobach of Kansas, and Raúl Labrador of Idaho wrote in support of their motion that the Biden administration’s petition for the Supreme Court to hear the case “spends the brunt of its analysis attacking the private plaintiffs’ theories of standing.” But the group says they have their own standing claims—including that doctors are using “shield laws” to mail mifepristone to their residents, which harms their ability to enforce abortion restrictions—and they want to join the case at this late date merely for expediency’s sake. “Presenting all theories of standing at once ensures that this Court (or appellate courts) can more cleanly get to the merits of this incredibly important issue,” they write. “And intervention is certainly more efficient than the States bringing a separate lawsuit, the only alternative to intervention.”

That’s not the full picture of what’s going on here, said Steve Vladeck, a professor at the University of Texas School of Law and an expert on the court’s shadow docket. Vladeck said the AGs trying to intervene this late, and in district court, not at the Supreme Court, is so unusual as to be suspicious. “I think it’s a pretty transparent and transparently cynical attempt on the part of these three states to try to put the substance of this lawsuit on somewhat stronger procedural footing,” he said. “I think it’ll be obvious to everyone [litigating] that that’s what this is.”

Before this intervention attempt, Vladeck said there was “broad consensus” that the most likely outcome would be the Supreme Court ruling that the Alliance for Hippocratic Medicine doesn’t have standing. That kind of ruling would avoid the underlying substantive questions about whether the FDA properly approved mifepristone, and updated its labeling. It’s “not at all obvious” to Vladeck that the states have a stronger standing argument than the AHM does. Instead, he said this is a long-shot attempt to get a favorable ruling from Kacsmaryk, who they rightfully view as a friendly judge.

Mary Ziegler, a law professor at the University of California, Davis, and a historian of the U.S. abortion fight, agreed that it appears that the AGs are trying to beef up weak standing claims, but noted that joining this late also has the neat side effect of possibly pushing the case into next year’s term, well after the presidential election.

“Some delay is inevitable given a motion to intervene—and that may be a feature rather than a bug—but this seems designed to serve as a backstop if the original plaintiffs’ standing claims fall apart,” Ziegler said. Delaying the proceedings would be a benefit for people who “think that the Supreme Court is more likely to side with you not in an election year.” In other words, the Supreme Court would receive massive public blowback that would hurt the Republican Party’s political chances in 2024 if it issued a ruling banning or restricting mifepristone prior to the election, but that risk is mitigated by delay. And if a Republican presidential candidate wins in 2024, that means a GOP Department of Justice would be tasked with defending the FDA in the case—and the department could abandon that defense, offer a halfhearted one, or even switch sides.

The Biden administration twice noted this delay in its response to the AGs’ motion: “Almost a full year after this case was originally filed, while the case is pending at the Supreme Court, three States now seek to intervene, wanting to pursue a 105-page Complaint supported by close to 700 pages of other materials.” That the states waited so long shows “there is no particular urgency to considering their request.” They ask instead that Judge Kacsmaryk wait for the Supreme Court to resolve the case before he rules on the AGs’ attempt to intervene, but, if he won’t do that, to give them at least 30 days from the AGs’ motion to respond. On Thursday, Kacsmaryk agreed to the latter, not the former.

The administration deserves this time to respond, but it could throw off the timetable for the case to be heard this Supreme Court term and have an opinion released by June 2024. The AGs wrote in a Tuesday filing that the clock is ticking. “If the Supreme Court grants certiorari after mid-January, it will not hear the case until October 2024 or later, absent an expediting order”—meaning, no ruling until June 2025. Solicitor General Elizabeth Prelogar has asked the court to consider whether it will take the case at its Dec. 8 conference.

If Kacsmaryk grants both the motion to intervene and the 30-day extension, that would butt right up to mid-January cliff for this term. Ziegler said that even if Kacsmaryk were to deny the AGs’ motion, it could slow down the case enough that there wouldn’t be a ruling before the election. Just the act of filing it this late is enough to throw a wrench into the process. Still, Vladeck said cases have been taken up as late as February, and the briefing schedule just gets expedited.

Now we have to wait and see what Kacsmaryk does. If he lets the states intervene in his court, they still have to request to join the case at the appeals level. Vladeck believes getting five justices to vote for that would be a hard sell. “I think that even justices who might be somewhat sympathetic [to the anti-abortion cause] aren’t going to be sympathetic to the transparent effort to manipulate their docket,” he said. (But if anyone were to agree, he said it would be Justices Clarence Thomas and Samuel Alito.)

So we are, once again, in the unfortunate position of hoping this Supreme Court does the right thing.