Opinion: Is the abortion pill ruling a result of the backlash to Dobbs?

Opinion By Carrie Sheffield

(CNN) — Thursday’s unanimous Supreme Court ruling against the plaintiffs in US Food and Drug Administration v. Alliance for Hippocratic Medicine means the current Food and Drug Administration (FDA) regulations allowing the use of the abortion drug mifepristone remain in place.

Unfortunately, the Supreme Court’s rejection was based on standing – whether the plaintiffs had the right to sue based on having suffered under the law at issue – not the underlying arguments about patient safety and FDA protocol brought forth by a group of nearly 30,000 physicians and other health care professionals. The group asserted that “the FDA’s own label says that roughly one in 25 women who take chemical abortion drugs will end up in the emergency room.”

I disagree with the court’s ruling that these doctors do not have standing. The fact that this case was successfully litigated by the plaintiffs under lower federal courts supports their claim to have standing. And Kristen Waggoner, president and CEO of Alliance Defending Freedom, the nonprofit legal organization representing the plaintiffs, told ABC News about how these doctors need to care for women who have used mifepristone, involving them directly in its use and effects. And there’s no question that it’s in the public’s interest —especially among doctors— to prevent medical harm.

But even with its ruling that the plaintiffs lacked standing, the Supreme Court could have used the opportunity to offer some discussion of the core issues in its opinion. Instead, the court took a narrow view, clearly unwilling to consider whether chemically induced abortions from mifepristone pose undue risks to women —meaning the FDA had failed in its legal obligations to protect the health, safety and welfare of girls and women. The court also declined to consider the human rights abuse of taking an unborn child’s life.

The court also sidestepped the issue of the executive branch overreach this case embodies, even as it could soon strike a major blow against administrative agency deference if, as expected, it overturns the precedent established by Chevron v Natural Resources Defense Council in another case it is ruling on this session.

Taken altogether, the abortion pill decision raises questions for pro-life activists like myself who are concerned that the political backlash against the Supreme Court’s 2022 Dobbs ruling striking down Roe v Wade, which had recognized a constitutional right to an abortion, is dissuading the justices from making substantive rulings on important cases on abortion.

Chief Justice John Roberts’ track record gives reasons for particular concern. He has been called an “incrementalist” since at least 2009 by voices as diverse as  various professors with University of Virginia School of Law, as well as Federalist Society lecturer Kristin E. Hickman in Harvard Law Review, along with The New York Times’ Adam Liptak and Josh Gerstein, POLITICO’s senior legal affairs reporter.

This goes beyond style and temperament; when major but controversial legal issues are ignored in favor of issuing narrow rulings on technicalities, it appears that Roberts is letting politics and criticism influence his decisions. That’s a problem, even for his fellow justices. Gerstein reported that Roberts’ colleagues objected to the chief justice’s proposal in the Dobbs case to at least temporarily avoid overturning Roe even as it sided with the state of Mississippi in keeping its near-ban on abortions after 15 weeks of pregnancy.

“The court’s conservatives dismissed Justice Roberts’ stance as unprincipled and impractical, while the liberal justices called it ‘wrong’ without detailing their objections,” Gerstein wrote.

Roberts generally likes to avoid sweeping rulings, worried about their broad social impacts instead of strict fidelity to the laws under the Constitution. The chief justice has repeatedly claimed that justices should not be political. In his 2005 confirmation statement, he insisted that judges should be invisible “umpires” and not “politicians who can promise to do certain things in exchange for votes.” In 2016, he expressed concerns that cavernous partisan divides harmed public opinion about the role of the Supreme Court.

The mifepristone case shows how this undermines the public interest in two ways. On the one hand, it avoids providing legal clarity on policies in urgent need of review, here the use of mifepristone. On the other, it suggests that the court is actually more interested in political considerations and preserving the court’s legacy vis-à-vis public opinion by avoiding a lightning-rod issue rather than issuing a ruling on the merits of the case.

This dynamic is only strengthened by the fact that political backlash can come from both sides. In addition to the popularity of chemical abortion, dramatic decisions going beyond the most narrow confines of a case can be labeled as “legislating from the bench.” This idea of “legislating from the bench” draws the wrath of conservatives each time I’ve heard it mentioned in my nearly two decades of observation and activism within the conservative movement.

If Thursday’s ruling is a sign that the post-Dobbs court is trying to avoid politics, that would be unfortunate for not just pro-life activists but all Americans, who deserve a court concerned with fidelity to the law rather than mass opinion.

The high court would do well to heed the caution of former British Prime Minister Margaret Thatcher: “Standing in the middle of the road is very dangerous; you get knocked down by the traffic from both sides.”

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