Which way will the Supreme Court rule on the biggest abortion case since Dobbs? We turned to an expert court-watcher to find out.

Tuesday, March 26, 2024
BY CROOKED MEDIA

—From the FAQ for Trump’s new ‘God Bless the USA Bible,’ ([link removed]) which features the text of the U.S. Constitution and Pledge of Allegiance. Cost: $59.99.

Which way will the Supreme Court rule on the biggest abortion case since Dobbs? We turned to an expert court-watcher to find out.


Today the Supreme Court heard oral arguments on Food and Drug Administration v. Alliance for Hippocratic Medicine, a case challenging expanded access to medical abortion with the drug mifepristone. For expert analysis, we called Leah Litman, a professor of law at the University of Michigan Law School, and co-host of Crooked’s Strict Scrutiny podcast ([link removed]) . Her view, in short: the justices appear unlikely to dramatically restrict access to mifepristone over this case.

Here’s that conversation.
Q: There was a lot of argument about “standing”... the question whether this group of plaintiffs, who are anti-choice doctors trying to challenge the FDA, are even qualified to sue in the first place. What was important?

LITMAN: There were, I think, at least six justices who were skeptical of the idea that these doctors had standing to bring their case in the first place. You need to show that what the FDA is doing is likely to cause you an injury in the future. And these doctors, it was clear, just can't do that. They have not shown that any one particular doctor is likely to be called upon to do something like providing procedural abortion, or facilitating a medication abortion, such that what the FDA is doing right now with respect to regulating mifepristone injures them. em. So I think again, like it's clear, at least six justices are there.

Q: What did you hear today that was most important about the merits of the case?

LITMAN: On the merits, there are at least two justices on the court who are interested in an issue that is not actually present in this case, but which concerns the interpretation of the Comstock Act, 1873 Victorian-era law that these justices say could allow a Republican president and Republican Attorney General to criminally prosecute—throw in jail—abortion providers and distributors and manufacturers of medication abortion. That is terrifying.

Q. Is there any real chance here that justices do something drastic, like ban mifepristone or at least highly restrict it?

LITMAN: There's no chance they will ban mifepristone, because they did not actually agree to hear that aspect of the case. And I think from the oral argument, it is exceedingly, exceedingly unlikely that they will do anything to dramatically restrict it, or even temporarily interfere with its access, in this particular decision at this moment.

Q. Why is access to mifepristone so important, especially here in the post-Dobbs era?

LITMAN: Medication abortion is the most common method of abortion in the United States. It avoids a procedure. You can take it at home, and some people prefer that. And I think particularly in a post Dobbs era, if you are living in a reproductive desert in a state that restricts abortion, it is in some cases easier, potentially, to obtain medication abortion than it is to go out of state in order to obtain a procedural abortion. And so medication abortion provides a way to access abortion in the current patchwork of laws, which is precisely why these anti-abortion doctors are trying to eliminate it and restrict it.

Q. Supreme Court justices are aware of the political disaster that Dobbs has been for the GOP since 2022. Do you think conservatives are going to avoid restricting mifepristone, in a decision that would anger women even more just a couple of months before the election?

LITMAN: Yes, absolutely. I think it's a combination of how legally baseless and factually baseless these claims are, combined with the fact that they reach the Supreme Court right before the 2024 presidential election, after the court saw what happened in Dobbs. But I think the danger in this case is that people take the court's decision, dismissing the case by these doctors for lack of standing and think: “Oh, the court learned its lesson. it's going to be reasonable. Now, I have access to medication abortion now for all perpetuity.” That is not what is going to happen as a result of this case.

You can hear more from Litman about this case on Wednesday's episode of Crooked's What A Day podcast ([link removed]) .

Women’s History Month is coming to an end, but you still have a few days left to shop Crooked’s She-Commerce Pop-Up Shop! The shop features favorites from women of color-founded companies and authors, and has everything from delicious goodies to kids books to candles. It’s a great way to support women of color and your online shopping addiction at the same time. Check out the pop up shop at crooked.com/store ([link removed]) , open until the end of March.
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The crash of the cargo ship Dali into Baltimore’s Key Bridge ([link removed]) is a tragedy that will spark plenty of debate about infrastructure safety, funding and regulation. The immediate aftermath has also been a study in how right-wing propaganda works in real time. Just moments after the collision, propagandists went to work tying the catastrophe to their favorite self-serving conspiracy theory. Participants included everyone from internet trolls to Fox’s on-air hosts to GOP candidates for Congress! What follows is just a brief sampling.

Pro-Putin propagandists raced to make the wreck about Ukraine ([link removed]) . Rep. Marjorie Taylor Greene (R-GA) rushed to ensure a terrorist attack was part of the conversation ([link removed]) (there was no evidence of an attack). Right-wing conspiracy theorists like (what-the-hell-happened-to) Lara Logan baselessly blamed the crash on cyber-terrorism ([link removed]) . Fox Business host Maria Bartiromo contorted herself to tie the disaster to immigration ([link removed]) (with zero indication it has anything to do with the border!) Of course, no right-wing propaganda blitz is complete without abject racism! There were lots of insipid tie-ins with “DEI” ([link removed]) (which stands for “diversity, equity and inclusion,” but on the right effectively means having Black people
in charge of anything),including from…wait for it…a GOP party officials and candidates for Congress ([link removed]) .

It should never not be shocking how easily the tactics of professional online propagandists and GOP party officials and Fox hosts now align. While authorities and the people who actually care about public safety work to figure out this tragedy, it’s also a great time to wrap your head around what a cesspool of dishonesty right-wing media has become. Stay safe out there, guys.

Manhattan Judge Juan Merchan (or, as we call him, 'The Juan who Knocks') slapped a gag order ([link removed]) on Donald Trump, banning Trump from attacking court staff, jurors, or the families of anyone involved in trying his upcoming 34-felony-count criminal case for defrauding voters via hush money payments to Stormy Daniels. The order came just hours after Trump (again) attacked the judge and his daughter ([link removed]) .

NBC News backtracked and reversed its decision ([link removed]) to hire exalted liar and gaslighter Ronna McDaniel as a $300,000 political contributor and analyst.

Robert F. Kennedy, Jr. decided against a famous sports star / conspiracy theorist ([link removed]) for his third-party running mate, and went instead with extremely-rich lawyer Nicole Shanahan, who spent $4 million bankrolling Kennedy’s Superbowl ad.

Federal prosecutors are inexplicably letting Texas GOP AG Ken Paxton off the hook ([link removed]) from three felony charges, allowing him to avoid trial next month by doing community service, taking ethics classes, and paying $270,000 in fines. Paxton was facing decades in prison if he was convicted of securities fraud.

Donald Trump is taking Christian nationalism to its most literal possible place ([link removed]) , endorsing Bibles emblazoned with an American flag for $59.95. The Bible, which is delivering Trump royalties ([link removed]) , comes with copies of the Constitution, Declaration of Independence, and other stuff right-wingers are hoping to enforce as Christian documents.

The GOP campaign operative ([link removed]) who accused CPAC’s Matt Schlapp of sexual assault has dropped his lawsuit.

One of Trump Georgia co-defendants, the one who tried to get Fani Willis booted ([link removed]) from the Fulton County case, in fact, has been subpoenaed by prosecutors running the criminal investigation of fake electors in Arizona.

Trump Media & Technology Group, which owns Truth Social, ([link removed]) ended its first day of public trading up 16%. Experts warn the over-inflated price appears likely to net Trump billions and wipe out investors.
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Mastodon bassist Troy Sanders was chosen from over 500 coaches as the Regional Little League Coach of the Year ([link removed]) . There’s some wholesome news to go with those sick metal riffs.

Washington State Gov. Jay Inslee (D) just signed a brand new law guaranteeing workers in adult entertainment training in sexual harassment, trafficking protection, and new security measures on dressing room doors and in private customer areas. Stripper’s Bill of Rights ([link removed]) !

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