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PaperclipPerfector  1yr ago (text post)   25138 thread views

Culture War Roundup for the week of June 10, 2024

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FDA vs Alliance for Hippocratic Medicine, the mifepristone case, was decided by SCOTUS. Full verdict here. The anti-abortion plaintiffs lose 9-0 on standing, with (quite properly for a case lost on standing) no discussion of the merits. Kav writes for the majority, with Thomas concurring on a technical point of standing law (on one of three theories of standing advanced by AHM the majority think they lose on the facts, but Thomas admits that this is correct under current precedent buy under a correct reading of the Constitution he thinks they lose on the law instead).

Quick thoughts:

  • The unanimous opinion treats this as an easy standing case. It is somewhat longer than an opinion needs to be in an easy standing case, which suggests that at least some of the justices wanted to benchslap Judge Kacsmaryk and the 5th Circuit panel.
  • Standing requirements make lawfare harder. If the right-wing Justices wanted to unleash a campaign of right-leaning lawfare then they could have decided this case differently, so it looks like the small-c conservative aversion to lawfare is holding up even with a right-wing Court.
  • Nevertheless, I suspect the pro-life movement can find a plaintiff with standing - perhaps a Catholic mail carrier who objects to delivering abortifacients could sue under the Comstock Act (which looks like the plaintiffs' best argument on the merits). But nothing is going to be decided before the election if a plaintiff wiht standing files a new suit.
  • The Project 2025 says that an incoming Republican administration should aggressively enforce the Comstock Act (which is prsumptively constitutional post-Dobbs) against pharmacies posting mifepristone to patients. This would render this litigation irrelevant.

The Project 2025 says that an incoming Republican administration should aggressively enforce the Comstock Act (which is prsumptively constitutional post-Dobbs) against pharmacies posting mifepristone to patients. This would render this litigation irrelevant.

Trump is at least aware enough to realize that hardcore prolife is very much a minority position in American politics. Some on the right seem to have run away with their own personal copium on this subject because polling shows most people don’t support unlimited abortion on demand until birth, but that doesn’t mean these pills used until the 10 week point are widely opposed at all.

The best thing the next GOP president can do on abortion is say it’s not federal business and let the states handle it. Getting trapped into promising federal / congressional restrictions would be a big mistake and highly unpopular.

Trump’s presumptive AG is Ken Paxton, who understands quite well that he has to throw the pro-life movement a few unpopular bones for their legal talent to help with Trump’s revenge tour.

On the other hand Kavanaugh and ACB have already indicated that beyond core tradcath issues like abortion they aren’t actually as conservative as Alito and Thomas, and often favor the status quo. The risk with ‘conservative’ Catholics is that they’re ‘conservative’ because they want to ban abortion rather than because they’re actually conservative, in the same way, say, Sheldon Adelson was conservative because he was a Zionist rather than out of particular principle.

Paxton’s staffers know the bargain they’re striking, and unlike sitting Supreme Court justices can be kicked to the curb if they don’t stick to the deal.

More to the point, ACB and kavanaugh are still conservative justices. They just aren’t Thomas or Alito. The pro-life politics drags them right.

ETA- because it might not be widely known: Thomas and Alito are the actual literal tradcaths on the court. ACB is at least as religious as them but sits well to the left in internal Catholic church politics; Kavanaugh is probably but not definitely much less religious and is definitely much less religiously conservative. Actual literal tradcaths in important government positions tend not to defect on non-core issues; that's why they're so common in hardliner right wing programs.

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