The Abortion Pill on SCOTUS’s Shadow Docket (with Mary Ziegler)

Hey folks, Prit here. Joyce Vance and I are out with a new episode of The Insider Podcast. This week we break down the ongoing legal dispute over Mithapristum, the abortion pill that's once again making the headlines. Joining us to discuss is Mary Ziegler. She's a law professor at UC Davis, and an expert on the law and politics of reproductive rights. Then Prit and I discuss a recent judicial opinion on ICE detainments. Listen to the full conversation now in the insider feed, and if you're not yet a member, we hope you'll join our community to help support our work and get access to exclusive subscriber benefits. Head to cafe.com/insider or stay tuned.substag.com. Now enjoy a free excerpt from our conversation. So can we focus in on the Louisiana case that's currently sitting on the court's shadow docket? Walk us through the process that gets the case to the fifth circuit, the action that they took, and now what the issues are as it sits in front of the Supreme Court. Right, so Louisiana was one of the states trying to block access to Mithapristum. So Louisiana, a woman named Rosley Markovitch, had filed this suit arguing in particular that the FDA didn't have the authority in 2023 to permit telehealth access to Mithapristum. And they, after a hearing in a district court in Louisiana, the district court said essentially, "I think that Louisiana is probably right here and that the FDA probably didn't in my view do a good enough job reviewing the scientific evidence, but I also have heard the Trump administration because this has one of the weird features of this case, as this is a Republican state suing a Republican FDA. The Trump administration had argued both that Louisiana didn't have standing, but also simply that the FDA was already undertaking this study of Mithapristum safety. So the Trump administration asked for more time to conclude that study before the court intervened. So the district court, while suggesting Louisiana was probably going to win and its court eventually was willing to give the Trump administration more time to wrap up the study of Mithapristum safety. So the court essentially said in six months we're going to ask for a status update. And if the administration hasn't made headway on this Mithapristum study, we're going to potentially give Louisiana what it wants. The Fifth Circuit Court of Appeals was not willing to slow down to that extent and issued a nationwide block on access to Mithapristum via telehealth immediately, right? That was the order that was paused by the Supreme Court. And the issues in the case are several, right? As you mentioned, the first question is whether Louisiana has standing to begin with, both the Trump and FDA and the drug manufacturers who intervened in this case, the manufacturers of Mithapristum, Gen, Biopro and Danko have all argued that Louisiana doesn't have standing. Louisiana's arguments that it has standing are primarily that one, the FDA's making Mithapristum available via telehealth makes it impossible for Louisiana to exercise its sovereign interest in enforcing its own laws. And second, that Louisiana has spent, you know, around 80 or $90,000 on two patients who went to the emergency department with Mithapristum related complications. And the drug manufacturers and the Trump administration have argued that neither of those is enough for standing. They say essentially the federal government isn't obliged to set policy to suit the states. That's not how it works, usually in fact federal policy can trump contradictory state policy. And that the federal government isn't commandeering Louisiana resources or telling Louisiana what a portion lost to pass. It's just simply setting a drug policy that makes it harder for Louisiana to do what it wants. On the Medicaid point, the Trump administration and the drug manufacturers are saying that it's really hard to know how these costs came about, right? Did these two people get Mithapristum because there was a telehealth option from the FDA? Did they get it because there were shealows on the books? Did they get it because they traveled out of state? Did they get it on the black market? Like, who know? Right. So they're saying essentially, even if you can show that Louisiana spent some money there, can you really trace that money back to something the FDA did? So standings in issue. Then there's issues, as I mentioned, about whether the FDA did its job in reviewing the science, particularly when it came to adverse events related to Mithapristum. And then finally, this is not an argument that Louisiana has pressed as much in this round with the Supreme Court, but a lot of the anti-abortion friend of the court briefs, including one filed by prominent Republicans in Congress. Their argument is essentially that the FDA couldn't legally approve telehealth because there's a 19th century obscenity law that already makes it a crime to mail or receive abortion medication or paraphynalia. So that arguments before the court, too. And we know, at least from the last round in Mithapristum litigation, that Justice is Alito and Thomas are at least interested in that argument. So there's a whole bunch of stuff for the court to chew on here. And we don't really know what they're interested in tackling. Let's just clarify, this is not the substantive appeal of these issues. This is, as we've seen so many times, an early squabble over a preliminary injunction, well, litigation proceeds. And this is all happening on the court's shadow docket, even though there are a number of different flavors of amicus briefs. Does that mean that we can expect to get a very unsatisfying decision when we get one? Justice Alito entered this temporary administrative stay that was supposed to expire Monday. Yesterday, Monday, he expanded it through Thursday. What do you think happens next? It's really hard to say, right? I mean, I think that there was some thought when the court originally hit the pause button on the fifth circuit that maybe the court would just schedule this for oral argument later. And essentially say, this is not something we need to resolve on the shadow docket. We can just move this into the sunlight, you know, have oral argument and have briefing, even though it's very early in the litigation, the court sometimes schedules things for oral argument early in litigation, too. And this doesn't look entirely like a prototypical shadow docket case. Like there doesn't seem there would be ways to preserve the status quo and allow for the litigation of this in a more regular way. That would also from a political standpoint have the virtue of not having a major Supreme Court decision on abortion months before a midterm. But given that Justice Alito just bought the court a couple more days, it suggests that the court is fighting internally about something. And I would assume that something is that at least some of the justices probably want to preserve what the fifth circuit did on the shadow docket, whether or not there's additional argument in the case later. So I don't know exactly what the conflict is about, but it's reasonable to assume that given the court's composition, there's some kind of disagreement between the most conservative justices about how to resolve this case at this point in the game. And maybe some of the courts more sort of center right justices on that same point. But we don't know again, because this is a shadow docket situation. We have very few tea leaves to read about what that disagreement is or where the court has headed on it. Can I ask a question about how regulatory agencies work and the continuity or discontinuity between those agencies as administrations changed? So on the one hand, you might think, well, you've got to change the law or you've got to change the personnel in the Supreme Court to accomplish some change in the law. To what extent are we seeing the mere switching out of personnel at the FDA, for example, or either demanding a change in policy or a change in their views about the efficacy and safety of particular drugs like methaprystone and how that necessarily affects a court decision about it. In other words, what confidence can anyone have, particularly in this context of drug safety, that a finding by an agency like the FDA today will be the same finding in the next administration and the administration after that and so on? Yeah, interestingly, right. I mean, the answer to your question is that's been more of an issue in the second Trump administration than it has been before, right? So we've seen a pretty massive effort by RFK to revisit the safety of a lot of drugs that have been a kind of standard part of American health care for decades. Ironically, that's not really what's happening with methaprystone in this case. So instead, what you're seeing is a lot of frustration from social conservatives that they're not getting that from the FDA on this drug. And I think that that frustration is especially acute because the FDA under RFK, well, RFK is not running the FDA, but under Marty McCarion in HHS under RFK, but the Trump administration generally has been willing to revisit the safety of drugs that everyone assumed were safe based on lots of evidence, not just from administration to administration, but over the course of an extended period of time. The Trump administration has been willing to call into question the safety of a lot of those drugs. And at the same time, hasn't really done anything on methaprystone, right? I mean, to put it generously has been slow walking this study. There's been recent reporting from the Wall Street Journal that the study on methaprystone safety has yet to begin, right? And that's been a source of embarrassment. That's led to reports that that Marty McCarion will be fired if he hasn't already been. So this is an unusual scenario where we're seeing that Americans can't be secure that a drug found safe in one administration will be found safe in another because if the administration doesn't do that job, they're now are going to be activist groups and states pushing the government to do that, right? So this is one of the few scenarios where the FDA was not moving in that direction. And so we saw conservative states being unwilling to wait, right, for that kind of sudden shift. Let's dig in. Maybe it's premature, but let's go here anyhow to the Comstock Act. And talk a little bit about what it is and how it plays in all of this because especially as you talk about the political context, one would think, right, that a wise Supreme Court and this court, whether it wants to acknowledge it or not, can be wise. Thanks for listening. To hear the full episode, become a member by heading to cafe.com/insider or stay tuned to dot subsdact.com. And once again, thank you for supporting our work.