The Daily - Abortion Goes to the Supreme Court (Again)

Episode Date: April 19, 2023

In overturning Roe v. Wade last year, the Supreme Court’s message was that it was done with the issue of abortion. Now, dueling rulings on abortion pills will send the issue back to the highest court in the country.Adam Liptak, who covers the Supreme Court for The Times, explains the case that is forcing the court to weigh in on abortion all over again.Guest: Adam Liptak, who covers the Supreme Court for The New York Times.Background reading: The justices are poised to consider whether an abortion pill can be sharply curtailed in states where abortion remains legal.Here’s what to watch for next in the case.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

From The New York Times, I'm Michael Barbaro. This is The Daily. In overturning Roe v. Wade last year, the Supreme Court's message was that it was done with the issue of abortion. It wasn't. of abortion. It wasn't. Today, Adam Liptak on the case that is forcing the high court to weigh in on abortion all over again. It's Wednesday, April 19th. So Adam, here we are once again, you and me, talking about abortion and the Supreme Court.

Right. And I thought when we talked about the big decision in June in Dobbs overturning Roe v. Wade, that the Supreme Court had kind of made us a promise that it was getting out of the abortion business and that the fight over abortion would now be political, not legal. Right. And yet, this issue has already made its way back up to the Supreme Court. So tell us why that has happened. So opponents of abortion won, of course, an enormous victory last June. And the upshot of that victory was that Roe v. Wade was overturned. And in much of the country, abortion became illegal, but not in all of the country.

And opponents of abortion wanted to be legal nowhere. And they hit upon a strategy to go after the most common method of abortion in places where it's still legal, which is the use of abortion pills, notably one called mifepristone. Right. A drug that, as we've explained on the show in the past, is used in about half of all abortions in the U.S. But remind us how exactly these anti-abortion groups try to go after this drug. Well, some groups of doctors and individual doctors who oppose abortion go into federal court in Amarillo, Texas. They do a bit of judge shopping. There's only one judge in Amarillo, Texas, federal judge, Matthew Kazmarek. And they make the argument to him that the Food and Drug Administration, 23 years ago in 2000, had relied on bad science to approve this drug, and that the

judge should step in and take the extraordinary step of suspending the approval of this abortion bill. Right. These groups want this medicine off the market entirely, and they think this is the judge who's going to make that happen. Right. And he holds a hearing, hears the arguments, and a little while later issues precisely the decision opponents of abortion were hoping for, saying he would suspend the availability of the drug. And his decision is widely criticized. Many people think it's flawed. And why exactly? Where to begin? There's a very significant question about whether these abortion opponents had legal standing to sue, whether they themselves had suffered the sort of direct and concrete injury that gives them standing to sue. And some of them might someday be in an emergency room where the rare thing of a complication induced by this abortion pill causes a woman to have to go to an emergency room, and they will have to treat that woman, and they won't want to do that.

And that chain of causation, legal experts say, does not satisfy ordinary understandings of standing. Because it's very theoretical rather than a case being brought by people who have actually suffered the harm. Right. And there are Supreme Court cases that say as much, that even a statistically likely prospect of future harm doesn't do it. Okay. So a shaky start. What else about the decision is considered less than pristine? There's a statute of limitations for challenges to drugs of six years. The drug was approved in 2000, and I'm not great at math, but 23 is larger than six. It is. So there's a real statute of limitations problem. And then there's the largest problem of all, a conceptual problem about who should be making

the decisions about whether drugs are safe and effective. We have, on the one hand, an expert agency, the Food and Drug Administration, which has gone through extensive study and approved the drug. And on the other hand, we have a federal judge in Texas who is re-evaluating that evidence for himself, although as far as I know, he has no particular scientific training. And he's also relying on some studies that critics have real problems with, including collections of blog posts. So it does not seem to be peer-reviewed science we're getting here. But nonetheless, Judge Matthew Kaczmarek comes to the conclusion that the FDA was wrong in the year 2000 to approve this drug. So in multiple meaningful

ways, this Texas federal judge's ruling feels shaky, maybe even a little bit shoddy, but here it is. He's a federal judge. His ruling has consequences. So what happens next? Well, the judge had some choices about what to do about his decision while the inevitable appeals were going to happen. He could have put the decision on pause to give the litigants and higher courts ample time in a deliberate way to consider whether his ruling was right or not. Instead, he gives the world a seven-day deadline.

His ruling is going to come into effect in a week unless a higher court does something to stop it. And that thing that will happen in just a week is that Mifepristone would be taken off the market, a very serious, very significant change. Yes, it would cause chaos in the marketplace. And so what is the reaction to this very aggressive timetable from this Texas judge?

There's reaction all over the place. This is a breathtaking example of judicial aggressiveness. First of all, the decision itself is the subject of really harsh criticism from across the ideological spectrum. The ruling reads like somebody who is a anti-abortion activist. I think there are problems with the judge's ruling, but I don't think that's because of his religious beliefs. I think he simply made judicial errors. There's a reaction from the pharmaceutical industry.

More than 600 drug makers and biotech leaders signing on to a scathing condemnation of that ruling by a federal judge in Texas. Which is terrifying, not only about this abortion bill. If one medicine is subject to this kind of outcome, really any medicine is. But about the idea that judges all across America are going to be second-guessing the FDA's approval of other drugs. Providers are once again scrambling at issue use of a key abortion medication after two conflicting court opinions. There is also, on the same night that the Texas judge rules, a ruling from a judge in Washington state that goes in precisely the opposite direction and says that in 17 states and the District of Columbia,

the FDA may not suspend approval of the drug, must keep the drug in place. Now the two competing rulings set up a high-stakes legal showdown that's likely to end up before the U.S. Supreme Court. So now there's contradictory rulings in the land. The Biden administration immediately goes to an appeals court, the U.S. Court of Appeals for the Fifth Circuit in New Orleans. Today, the Justice Department appealed a federal judge's ruling asking for an emergency stay. And says, please stop that seven-day deadline.

Please let us litigate this in an orderly fashion. And how does the Fifth Circuit respond? So the question before the Fifth Circuit is what to do while the appeal goes forward. And to the surprise of almost everybody, it issues a kind of mixed decision. It says, we're not going to go back to 2000. That's too far back. The statute of limitations has passed. We are going to maintain the FDA's approval of the drug, and we're not going to recreate the world of before 2000, where this

drug was not yet approved as safe and effective. But we are going to go back to 2016. And in 2016 and in later years, the FDA gradually expanded access to the drug. It made it available up through 10 weeks of pregnancy versus the original seven. It required fewer visits to a doctor. It allowed other health care professionals to prescribe it. And it allowed the drug to be mailed. All of that, the Fifth Circuit said, could be suspended. So they didn't take the world back to 2000, but they took the world back to 2016.

So Adam, just to be sure I understand, whereas the Texas judge, during this interim period, wants to roll back the clock on mifepristone all the way back to 2000, to a world before the FDA even approves this drug. The Fifth Circuit says, no, something more modest is in order. We're going to roll back the clock to before 2016, when access to this drug was expanded. So the world we're going to be living in right now is going to be one where mifepristone is available, but just not as available as it has

been. That's right. And I suppose the Fifth Circuit thought that was a compromise of some sort, but not everyone agreed. I'm curious, Adam, what do you make of the fact that we now in this legal saga have two federal courts, one on the district level, the other on the appeals level, going outside what, in your description, is the typical path of leaving access to a drug like this untouched as a case winds its way through the system. So let me start by saying that there's almost nothing typical about this case. And this is the first time, to anyone's knowledge, that a court has overruled the FDA's approval of any drug of any kind. Right. And not to be simple-minded about it, but at least some legal observers note that the Texas judge and the judges in the majority in the Fifth Circuit

were all appointed by Donald Trump, who had vowed to appoint judges who were prepared to overrule Roe v. Wade and who were opposed to abortion. Got it. So against that backdrop, what, Adam, happens next? Well, the Biden administration can't live with this supposed compromise from the Fifth Circuit. And it goes to the Supreme Court. The Supreme Court that just last June said that it was getting out of the abortion business. But that turned out to be wrong.

We'll be right back. So Adam, what does the Supreme Court, which as you said, doesn't really want to have to be involved in this kind of a case, but now has had its hand forced, what does it do? Well, Michael, remember that one-week pause that the judge in Texas imposed? Justice Samuel Alito says he's going to extend that pause just for a couple days to give the Supreme Court enough time to read briefs to get on top of the lower court decisions and make a decision. And he sets a new deadline tonight at midnight. Got it. So what exactly will we know by midnight tonight? What is the scope of what we expect the Supreme Court to decide given all these conflicting cases and this legal saga that has led us to this

point? So let me start by saying the Supreme Court can do whatever it likes, but I'll tell you what the likely outcomes are. One thing the court's not going to do tonight is decide on the merits of whether Judge Kaczmarek was right or wrong. The court will almost certainly get to that question down the line, maybe months from now. For now, all the court is going to decide is what happens in the meantime while the case goes forward. And it can basically do one of three things. One is to say that the status quo we've lived with for 23 years remains in place and the pill remains available. The other is to say, remains available. The other is to say, as the Fifth Circuit did, that the relaxed standards after 2016 go away, but the pill is mostly available. And the third is to say that while the case goes forward, access to the pill is suspended and abortion becomes even more difficult

to obtain in the United States. Got it. Adam, this is, of course, a Supreme Court whose conservative majority is inclined to oppose abortion. I don't think there's any debate about that. But as you hinted at earlier, in its biggest ruling of all on abortion, made clear that it wants elected officials to be deciding access to abortion rather than the judiciary issuing a kind of one-size-fits-all nationwide policy. So which of these three

outcomes that you just went through seems most consistent with this Supreme Court's approach to abortion? Well, if we take the court at its word in Dobbs, it claimed to be scrupulously neutral about abortion. It wasn't pro-abortion. It wasn't anti-abortion. It just said the Constitution has nothing to say about it, and the court was going to stay out of things. If that vow is to be taken seriously, you would think the court would defer to the expert agency in this area and its review of the science and certainly just while the case proceeds, allow access to the pill to continue. So basically leave it as it was post-2016, full access to this pill, at least in the states where abortion remains legal.

That's what the logic of Dobbs would suggest. But of course, at least some of the justices may have been animated not by scrupulous neutrality toward abortion, but by actual opposition to abortion. So I might expect a split decision with the most conservative justices, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch maybe off on one end, the three liberal justices, Justice Sonia Sotomayor, Elena Kagan, and Katonji Brown-Jackson off on the other end, and then the middle of the court being decisive, Chief Justice Roberts, Justice Brett Kavanaugh, and Justice Amy Coney Barrett. And I think some coalition of the liberals plus the Chief Justice plus Justice Kavanaugh might be enough to maintain, for the

time being, the status quo, allowing unfettered access to the bill as we've had since 2000. And let's presume, Adam, that your prediction here is correct, and a coalition of liberal and conservative justices comes together and ensures unfettered access to Mifepristone for now. What will that tell us about how the justices are likely to rule on this even larger and more consequential question of whether this Texas judge's ruling has merit, that the FDA was wrong when it approved this drug back in 2000, and that it should be banned. So they're not the same questions. They don't involve identical legal standards.

But nonetheless, as a practical matter, the vote on this initial question will be powerfully predictive of the vote on the ultimate question, meaning that if I'm right, and we'll find out soon enough, abortion opponents are likely in the short term but also in the long term to suffer a setback. But it's important to consider the context. They won a huge victory on a constitutional question in the Dobbs decision. This is a different question, a question of administrative law. It was a very ambitious claim to begin with. They found a sympathetic judge who produced a not particularly satisfying opinion, and they can't have been all that confident that they could ultimately win on the merits of this case. And whatever the justices' sympathies are on abortion, they also have some commitment to judicial craftsmanship

and maintaining commitments to legal doctrines like standing and the statute of limitations and how administrative law works. And legal experts say that Judge Kaczmarek's opinion flunked all of that. And the Fifth Circuit's opinion was a little better. So while people have lost a lot of faith in the Supreme Court, they still hope and expect that a majority of the justices are committed to neutral legal principles that would make this kind of case difficult to sustain. So these two questions of what to do about Mephipristone both in the short term and the long term could ultimately reveal the limits of this Supreme Court's conservatism when it comes to abortion.

There may be a place that it just won't go. Yeah, I mean, there are outcomes that many of the justices might like, but they need to have a pathway to those outcomes that looks like law, not politics. And this doesn't look like that pathway. No, it doesn't. And while the court is full of surprises, this is a moment in time when it's in the midst of a legitimacy crisis. Its public approval ratings have plummeted. There are almost daily revelations about apparent ethics violations, notably by Justice Clarence Thomas.

And it's probably not the moment for them to endorse legal theories that all kinds of serious people, conservatives and liberals both, think are borderline crazy and would do more than affect abortions. It would undermine the ability of the Food and Drug Administration to set national standards for safe and effective drugs. It would allow anybody with an objection to a vaccine or something else to go into court and have a single federal district judge untrained in science to second guess the approvals of the expert agency. So just as the FDA does a cost benefit analysis of whether to approve a drug or not. The court has to do a kind of cost-benefit analysis too.

It may like a particular result, but it has to think of the cost of the collateral consequences. And the consequences here would be enormous. Right, because the cost might not just be the court's legitimacy in the eyes of many Americans, because it would be endorsing what looks like an ideologically driven, legally shaky ruling on a subject the court has said it doesn't want to touch anymore. It could also imperil an enormous component of the American healthcare system. And those are two costs that might make the justices inclined to show some real restraint here. Yes, so this is a court that is assertive and ambitious and has an agenda, and that

agenda may even include trying to further restrict abortion, notwithstanding what seemed to be a promise in the Dobbs decision. But even so, you would think these are sensible, able judges who would want to pick their shots. And maybe not in this particular case, where there are the questions you've raised, Michael, take an enormous step at the cost of imperiling its prestige, authority, legitimacy, in an era where it's under all kinds of scrutiny and assault. Well, Adam, as always, thank you very much. We appreciate it. Thank you, Michael.

We'll be right back. Here's what else you need to know today. In a dramatic and surprise ending to what was expected to be a blockbuster defamation trial. Fox News reached a nearly $800 million settlement with Dominion Voting Systems, which had accused the network of knowingly spreading false claims about its role in election fraud in the 2020 election. The last-minute settlement was announced after a jury had been selected

and opening statements from both sides were about to start. Dominion had originally demanded $1.6 billion from Fox, but even with a settlement that fell short of that, Dominion's lawyers called the outcome a major victory for and the truth. Today's settlement of $787,500,000 represents vindication and accountability. Lies have consequences. The truth does not know red or blue. Anne. On Tuesday, a Russian court rejected an effort by a Wall Street Journal reporter to

end his detention while he awaits trial on charges of espionage that both his employer and the U.S. government say are entirely baseless. The rejection came during a hearing in which the reporter, Evan Gerskovich, appeared in public for the first time since his arrest. His detention, the first time a Western journalist has been charged with espionage since the Cold War, has brought relations between the United States and Russia to a new low. Today's episode was produced by Nina Feldman and Alex Stern, with help from Michael Simon-Johnson. It was edited by Lisa Chow and Devin Taylor,

contains original music by Dan Powell, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landferg of Winderle. Special thanks to Pam Bellick. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.