Steve Ruis raises an interesting question: Why did four justices of the U.S. Supreme Court agree to take the abortion pill case, then rule unanimously that the litigants had no standing to sue? Wouldn’t the four who wanted to hear the case know that in advance? Why did they waste everyone’s time?

Steve has a suspicion that the six justices who voted to strike down Roe v. Wade were sending instructions for the next legal challenge to the pill: try again but avoid these pitfalls. Find a plaintiff with standing.

Just as he predicted, the plaintiffs are lining up to challenge the pill again. They are taking their cases to the same far-right judge in Amarillo, Texas, who previously said the Federal Drug Administration should never have approved the pill.

US District Judge Matthew Kacsmaryk will have to decide later this summer if three conservative states that want to continue the fight against the drug can do so in his court. The decision is one of several in coming weeks that will determine whether – and if so, how quickly – the case against mifepristone makes it back to the Supreme Court.

Before Trump appointed him, the judge was an attorney for a Christian advocacy group. He is known for his anti-abortion views.

Three conservative states—Missouri, Idaho, and Kansas—want to block access to the pill, and they plan to file their case in Amarillo, knowing that it will be heard by a friendly judge.

An immediate question for Kacsmaryk is whether the states can continue to do so in his court. Generally, parties must be able to justify filing lawsuits in a specific federal court. The doctors and anti-abortion groups who sued over mifepristone incorporated a group called the Alliance for Hippocratic Medicine in Amarillo  months before their lawsuit.

The groups’ move to bring the case in Amarillo, a far-flung court division in Texas’ panhandle, was among the most controversial aspects of the lawsuit. Kacsmaryk is virtually guaranteed to hear every case that is filed there, and his courthouse has become a favorite option for conservative litigants and states seeking to halt the Biden administration’s agenda.

Steve Ruis was prescient. A few days after he posted his warning, Washington Post columnist Jennifer Rubin, a lawyer, dug down into the decision about the abortion pill.

She wrote:

Just as they did when the Supreme Court managed to reject the utterly outlandish independent state legislature theory in Moore v. Harper, too many credulous court watchers rushed forward last week to praise the high court for its “reasonableness” in rejecting a half-baked claim to restrict access to mifepristone, the medical abortion drug. It gets no brownie points for knocking down on technical standing grounds one of the more outlandish opinions from the U.S. Court of Appeals for the 5th Circuit and antiabortion activist District Judge Matthew Kacsmaryk.

Despite headlines that the court was saving or preserving mifepristone, it did nothing of the sort. Worse, Americans have plenty of reason to fear what the most radical and aggressive Supreme Court since Dred Scott is up to.

The majority found that the respondent, Alliance for Hippocratic Medicine, lacked standing because the group’s members were already spared from any obligation to perform medical abortions by federal conscience clause protections, had only the most speculative injuries, and had to do more than prove it devoted resources to the issue to qualify for “associational” standing. (Plaintiffs cannot “spend” their way into standing, the majority held.)

As a preliminary matter, Justice Clarence Thomas (under fire for yet more unreported lavish gifts from right-wing billionaire Harlan Crow) filed a concurrence that was downright scary. He argued that no organization or association should ever be allowed to assert organizational standing. Here, he went after a nearly 50-year-old precedent.

As Reuters explained, “Thomas essentially attacked a long-recognized legal doctrine relied upon by associations ranging from the nation’s biggest business lobby — the U.S. Chamber of Commerce — to environmental groups and gun rights advocacy organizations to challenge government policies by suing on behalf of their members.” By depriving the most able plaintiffs from challenging statutes, Thomas would give the federal government and states license to run roughshod over individual rights without necessarily changing the substantive law.

Following his attack on Brown v. Board of Education in the South Carolina redistricting case and his assault on Griswold v. Connecticut in the Dobbs case, Thomas once more reveals just how radical the Supreme Court, with the addition of more radical justices, might become in the future.

What was hyperbole is now a road map straight from the concurrences of one of the most radical justices. In the upcoming election, Democrats would do well to focus on the extremism of the Supreme Court as they explain how even more extreme the court would become with more MAGA appointees.

One could simply substitute Thomas for Robert Bork, the radical nominee whose appointment was scuttled in 1987, in Sen. Edward M. Kennedy’s famous denunciation:


[Clarence Thomas’s] America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.

What was hyperbole is now a road map straight from the concurrences of one of the most radical justices. In the upcoming election, Democrats would do well to focus on the extremism of the Supreme Court as they explain how even more extreme the court would become with more MAGA appointees.

Drilling down on the majority opinion, one finds that the court says nothing that would restrict states from banning all abortions, medical or otherwise. As Dahlia Lithwick and Mark Joseph Stern remind us, “It remains unlawful to prescribe in states that criminalize abortion; it has even been deemed a ‘controlled substance’ in Louisiana.” Moreover, Thomas and other radicals’ pet theory for banning all abortions — expansion and contortion of the Comstock Act to prevent use of the mail to send abortion devices or literature — “will roar back with a vengeance,” the authors note, if Trump prevails and the Supreme Court, freed from worries about a national backlash, decides to take the issue on squarely.

Furthermore, while this particular plaintiff was denied standing, another party, such as a state or individual doctor, might easily establish standing to take another crack at outlawing mifepristone. Jenner & Block, a litigation firm, explains on its blog:

First and foremost, this decision does not spell the end of the mifepristone litigation. While this case was pending at the Supreme Court, three states — Missouri, Idaho, and Kansas — successfully intervened at the district court. Now that the case has been remanded, these three states will continue their challenge to the FDA’s regulation of mifepristone, and based on their complaint, they intend to make many of the same arguments as the Alliance. Specifically, the three states have challenged the FDA’s decisions to expand access to mifepristone from 2016 onward, including the ability to have mifepristone dispensed via telehealth services and distributed by retail pharmacies. Given the district court’s willingness to enjoin the FDA’s approval entirely and the Supreme Court’s failure to reach the merits, it is likely that the states will prevail on at least some of their claims. This would mean another year or more of appeals to the Fifth Circuit and the Supreme Court, with continuing uncertainty surrounding the regulation of mifepristone in the interim.

Mifepristone, therefore, has not been “saved” in any sense. If anything, it’s on life support, pending an election that would give the court a green light to go wild and/or offer felon and former president Donald Trump the chance to add to the ranks of the most extreme justices.