Call Balls And Strikes? Not So Fast!

On Thursday, the U.S. Supreme Court decided Food and Drug Administration, et. al., vs. Alliance for Hippocratic Medicine, et.al., a case about use of the drug mifepristone in terminating pregnancies up to seven weeks. The high court found unanimously the plaintiffs lacked standing. They did have other things to say.

Is the Supreme Court calling balls and strikes in this decision? No, they are not.

Politico journalist Alice Miranda Ollstein identified four anti-abortion wins buried in the Supreme Court’s unanimous ruling against them. Read Ollstein’s entire article on Politico’s free website here and give her a follow. My short summary of the pitfalls she identified is as follows:

• The SCOTUS decision was based entirely on procedures grounds, i.e. the plaintiff did not have standing. The decision avoided discussion of merits of the case.
• What rights do physicians have to refuse to perform abortions or other health services that they feel conflict with their moral or religious beliefs? Historically, said University of Texas law professor Liz Sepper, a federal law called the Church Amendment gave doctors the right to refuse to participate only in abortion or sterilization, but the new ruling expands the scope to “the full range of medical care.” This could be a major departure from precedent.
• Justice Clarence Thomas’s separate concurrence with the unanimous decision contained suggestions for other ways abortion opponents could bring legal challenges or pursue restrictions on the pills in Congress or through the executive branch. Such road maps are certainly not necessary and some would say inappropriate.
• Thomas’s concurrence suggested the sword should cut both ways. This is a flashing warning light for abortion-rights proponents who have long relied on what’s known as third-party standing to challenge abortion restrictions in court. Essentially, many courts have allowed doctors to bring lawsuits on behalf of their pregnant patients because the time-sensitive nature of pregnancy makes it impossible for patients to sue, and because most anti-abortion laws target doctors rather than patients with criminal and civil penalties.
  Thomas wrote, using loaded language favored by the anti-abortion movement, that the court’s decision denying standing to the doctors in the Alliance for Hippocratic Medicine should cut both ways.
  “Just as abortionists lack standing to assert the rights of their clients, doctors who oppose abortion cannot vicariously assert the rights of their patients,” he said.

What may seem like a clean win for proponents of use of the drug mifepristone for ending pregnancies is not clean at all. I recommend reading Ollstein’s entire article here. It seems easy to predict this issue will return to the Supreme Court soon.