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Eligible Service Plan, only on Verizon. Mr.

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Chief Justice, may it please the court?

1:21

It's an old joke, but when I argued,

1:23

man, I argued against two beautiful ladies like

1:25

this, they're going to have the last word.

1:29

She spoke not elegantly,

1:31

but with unmistakable clarity.

1:34

She said, I ask

1:37

no favor for my sex. All

1:40

I ask of our brethren is

1:42

that they take their feet off

1:45

our necks. Hello,

2:00

and welcome back to Strict scrutiny, your

2:02

podcast about the Supreme Court and the

2:04

legal culture that surrounds it. We're your

2:06

hosts. I'm Alyssa Murray. I'm Kate Shaw.

2:08

And I'm Leah Litman. This is not

2:10

a full episode. It's not even a

2:12

full emergency episode on the medication abortion

2:14

case. But given how important the case

2:16

is, and the fact that coverage is

2:18

unfolding now, we wanted to push something

2:20

out to all of you so you

2:22

could help your friends stay informed, specifically

2:24

stay informed about what the Supreme Court

2:27

might be up to. Right.

2:29

So today the court heard the arguments

2:31

about the challenge to medication abortion. And

2:33

that is a case that is trying

2:35

to severely restrict access to medication abortion.

2:37

And good news coming out of

2:39

the argument is that it seems that the

2:41

court is going to turn away this challenge,

2:44

that they are going to say that the

2:46

doctors, the anti-abortion doctors who brought this suit,

2:49

don't have standing to bring their case because

2:51

they are not injured by the FDA's decisions

2:53

in 2016 and 2021 about

2:55

how mifapristone should be regulated and

2:57

how it can be safely used. So

3:00

there is some good news coming out of

3:02

the argument, but it's not all good news.

3:04

I'm not even sure it's good adjacent,

3:07

really, Kate. This

3:09

argument may be a success in

3:12

that it seems like the court

3:14

is going to off-ramp this case

3:16

on standing grounds. But there were

3:18

some really surprising and genuinely alarming

3:20

lines of inquiry from some of

3:23

the justices. And we

3:25

just wanted to highlight them because these

3:27

justices are definitely feeding the

3:29

ground for what comes next. And

3:31

specifically, these justices, and of course

3:34

they are the Republican justices, are

3:36

signaling that they are very interested

3:39

perhaps in a future Republican administration

3:41

like future as in November 2024,

3:43

deciding to go forward to revive

3:46

a dormant zombie

3:49

law, the 1873 Comstock Act,

3:52

and using that long dormant

3:54

law to enforce a nationwide

3:57

ban on abortion. So there's been lots

3:59

of discussion. about the prospect of a

4:01

nationwide ban going through Congress. Under

4:03

this logic, you don't need Congress to do this

4:05

at all. All you need is a new president

4:08

and a new DOJ and a new attorney general

4:10

who is, calm stop curious, and

4:12

ready to enforce this zombie law

4:14

for the first time in a

4:16

very long time. So the

4:18

messaging now is they're not taking

4:21

your abortion pills today, but

4:23

wait until November

4:25

2024 because there's another

4:28

on-ramp for this court. Yeah.

4:30

So just to make clear, right, messaging out

4:32

of this case is, and this is what

4:34

people are saying and it's correct, they're not

4:36

taking your abortion pills, but the end of

4:38

that sentence should be, they're not taking your

4:40

abortion pills yet or in

4:42

this case today. Right. This

4:44

second, these justices want to revive

4:47

the Comstock Act as a nationwide

4:49

ban on abortion. That would suggest

4:51

abortion providers and medication abortion distributors

4:53

and manufacturers who criminal prosecution and

4:55

imprisonment and Congress would not have

4:58

to do a single thing.

5:01

This is the topic. This is the topic, right? Even

5:04

though it's not an issue in this

5:07

case, given the questions that the court

5:09

granted cert on, and yet these justices

5:11

are so intrigued by it, they couldn't

5:13

let it go. But

5:15

don't take our word for it. Let's roll the tape.

5:18

Here's Sam Alito bringing it up,

5:20

but trying to do so in

5:22

a way where you wouldn't know

5:24

that he's talking about casually Comstock

5:26

curious. Right. He's trying to make

5:29

it very subtle, like as subtle

5:31

as he can be subtle. Shouldn't

5:33

the FDA have at least considered

5:35

the application of 18 U.S.C. 1461? He's

5:40

so sneaky. He's so sneaky because right now

5:42

the statutory citation, well, we're not going to

5:44

let him get away with it, but he's

5:46

certainly trying. And you know who

5:48

else was not going to let him get

5:50

away with it was the federal government's lawyer,

5:53

Elizabeth Prelogger, who in her answer to Alito's

5:55

question, where he just used the number said

5:57

Comstock because she was, I

5:59

think, signa- to everyone else in

6:01

the room and listening to the

6:04

argument what he was talking about,

6:06

which was, again, this long dormant

6:08

Victorian era law that prohibits the

6:11

mailing of drugs, devices used

6:13

for, among other things, immoral purposes,

6:15

that in the era in

6:18

which Roe vs. Wade was the law of

6:20

the land could never have been used for

6:22

a purpose like this one, but post-Hobbs, anything

6:24

is possible, and Sam is very much interested

6:26

in that revival. Okay, so let's just play

6:28

Elizabeth Prelogger. Sam refuses to name the law

6:30

in his question. She answers it and

6:33

invokes the name Comstock. So

6:36

I think that the Comstock provisions

6:38

don't fall within FDA's lane.

6:41

FDA, under the FDC, can only maintain

6:43

restrictions under the REMS program if it's

6:45

necessary to ensure safe use. In 2021,

6:47

what FDA determined is you don't need

6:50

in-person dispensing for safe use, so the

6:52

FDC did not independently require that REMS

6:54

restriction, and in fact, it couldn't be

6:56

imposed once FDA had made that determination.

6:59

Now, that doesn't affect other sources of

7:01

law. FDA was not affirmatively approving, mailing,

7:03

and violation of Comstock, even if you

7:05

interpret it that way, and we don't

7:08

think it means what respondents suggest it

7:10

means. Say its

7:12

name, Sam. All you have

7:14

to do is say its name. Again,

7:17

he was not going to be

7:19

denied his opportunity to be

7:21

casually Comstock furious. So Justice

7:23

Alito stayed on this issue like

7:25

a dog with a bone signaling

7:28

that he is very, very interested

7:30

in the future prospects of the

7:32

Comstock Act. So here he is

7:34

in another clip referring to the Comstock Act

7:37

as a quote-unquote prominent provision,

7:40

even though this is a law that

7:42

has literally been dormant for most of

7:44

our lifetimes, nearly a century, and has

7:46

not been enforced or interpreted as a

7:49

ban on abortion. But nevertheless, let's hear

7:51

this discussion of this prominent provision about

7:53

abortion. Well, it didn't say any of that.

7:56

It didn't say anything about it. And this

7:58

is a prominent provision. It's

8:00

not some obscure

8:04

subsection of a complicated,

8:06

obscure law. They know about it. Everybody in

8:09

this field knew about it. Shouldn't they have

8:11

at least addressed it? You have answers to

8:13

the arguments that are made on the other

8:15

side. Shouldn't the FDA have at least said

8:18

we'd consider those and provide some kind

8:20

of an explanation? And

8:23

not to be outdone, not to leave

8:25

his boy in the wind, Justice Thomas

8:27

decided to tag in to also get

8:29

a little casually Comstock curious. Let's hear

8:31

him. The government, the

8:34

Solicitor General points out,

8:36

would not be susceptible

8:39

to a Comstock Act

8:42

problem. But

8:44

in your case, you would be. So

8:49

how do you respond to

8:51

an argument that mailing

8:54

your product and

8:56

advertising it would violate Comstock?

9:00

And again, Justice Thomas is the

9:02

ultimate wingman. So he tagged in

9:04

repeatedly to hook up his bro,

9:06

Sam Alito. Here he is once again.

9:09

Well, my problem

9:11

is that you're private.

9:14

The government, I understand the government's

9:17

argument, but you're

9:19

private and the statute doesn't have

9:23

this sort of safe harbor

9:25

that you're suggesting.

9:28

And it's fairly broad and it

9:31

specifically covers drugs such

9:33

as yours. He

9:35

also invited the Alliance Defending Freedom

9:37

Council, Erin Hawley. You might also

9:39

know her as the wife of

9:41

a certain Missouri senator who enjoys

9:43

recreational running. She was

9:46

a lawyer arguing on behalf of the anti-abortion

9:48

doctors to limit the access to medication abortion.

9:50

But Justice Thomas invited her to share a

9:52

little more about her views about being

9:54

Comstock curious. So here he is with

9:57

her. answers

10:00

of the Solicitor General and

10:02

the Council for Danko with

10:04

respect to the Comstock Act.

10:09

I'd like you to comment on their

10:11

answers. And to

10:13

pivot to another justice who said some,

10:15

you know, eyebrow-raising things during the oral

10:18

argument, we want to play

10:20

a clip from Justice Amy Coney

10:22

Barrett, aka Lady Safehaven, gesturing,

10:25

which is a reference to a line

10:28

of argument she was really curiously fixated

10:30

on during the Dobbs case, which

10:32

seemed to suggest that, you know, these

10:34

so-called Safehaven laws that allow you to

10:36

literally drop a baby at a fire

10:38

station obviated any problems

10:40

that might attach to being forced

10:43

to carry to term an unwanted pregnancy.

10:45

So that's Lady Safehaven. We may need

10:47

a new moniker for her during this

10:49

argument, but she really seemed to be

10:51

the most interested in pursuing the idea

10:54

of fetal personhood. The idea

10:56

that a fetus is a person with the

10:58

rights and protections of a living person such

11:00

that the law is bound to respect the

11:03

interest and rights of a fetus. And

11:05

that's a view that many in the

11:08

anti-abortion movement have long held and long

11:10

pursued and are seeking, you know,

11:12

legal support and recognition for. And I

11:14

think this was the biggest moment that

11:16

fetal personhood had ever had in, you

11:18

know, the halls of 1st Street or

11:20

the federal courts in general. So let's

11:22

play that clip You were

11:24

talking about Dr. Francis, and

11:27

as I read her allegations, or as

11:30

her affidavit reads, she

11:32

said that her partner was forced to

11:34

perform a DNC when there was a

11:36

living fetus. And she said

11:39

she performed a DNC on a woman who was

11:41

suffering serious complications. But the fact that she performed

11:43

a DNC does not necessarily mean that there was

11:45

a living embryo or fetus, because you can have

11:48

a DNC after, you know,

11:50

a miscarriage. Time out for a

11:52

minute, Kate. Can I just say we predicted this like

11:54

we've been talking about fetal personhood for a long time. We

11:56

mentioned it with regard to the Alabama in

11:58

vitro fertilization case. We talked about it

12:01

with regard to the Florida Supreme Court oral

12:03

argument a few weeks ago We talked

12:05

about it with regard to the lower court opinions

12:07

in this case And we also said there were

12:09

a lot of fetal personhood Easter eggs in jobs

12:11

So people who were dismissing

12:13

us as being like weird harpies who

12:16

just like see fetal personhood everywhere

12:18

like it's here It's coming. Yeah

12:21

Yes And this is Justice Barrett basically saying

12:23

put the Comstock Act is it in a

12:25

drop box? Right and let's just go full

12:27

on fetal personhood because right fetal personhood would

12:29

basically say Who

12:31

cares whether Comstock Act is the law

12:34

or not? Right fetuses are people entitled

12:36

to rights under the US Constitution and

12:38

all statutory law So even

12:40

if a democratic Congress came back and

12:42

repealed this Comstock Act Which by the

12:44

way isn't an abortion ban even though

12:46

Trump and his Enablers want to make

12:48

it one even if they repealed it

12:50

then you would have fetal personhood forward

12:52

people like perhaps Justice Barrett saying who

12:54

cares right Republicans can throw right abortion

12:56

providers in jail anyways and

12:58

this is again two years after

13:01

Dobbs and We

13:03

are already on the precipice of this

13:06

concept curious fetal personhood forward. We

13:08

got all our bases covered So

13:10

again just to underscore when talking

13:12

to friends and family about this

13:14

decision It is a good thing

13:16

that the court is dismissing this

13:18

case because these anti-abortion doctors are

13:20

not injured by the FDA's Determinations

13:22

about how mifo-pristone can be safely

13:25

used right that's all well and

13:27

good But that does

13:29

not mean this court has somehow

13:31

become reasonable or moderate Especially on

13:33

the issue of abortion rather they

13:36

are signaling what they are inviting

13:38

and laying the groundwork for future Republican Administrations

13:40

to do are we like a hundred percent

13:42

sure they're gonna offer up this. Oh Everything

13:46

seems to hang on Brett Kavanaugh and like

13:48

that's never a great position to be in that's

13:50

true I actually think both

13:52

because the fact that these doctors

13:55

clearly lack standing on any defensible

13:57

conception of article freestanding enough

14:00

to give a comfort that the court

14:02

is going to do that. But the

14:04

timing, the elections are timing of this

14:06

case, I think combined with the facially

14:08

preposterous standing argument that these doctors have

14:10

means that I think a majority of

14:12

these justices who understand what has shocked

14:14

the system and the political season it

14:16

would be if they all of a

14:18

sudden radically reduced access

14:20

to metropress tone, including in states

14:23

across the country that do try to protect abortion, I

14:26

think that they know that would be that the

14:28

timing here is suboptimal. And for that reason,

14:30

plus the... We said this

14:32

about Dobbs, I just want to point out. It's true, but

14:34

I think that the Republican justices who didn't listen to John

14:37

Roberts' arguments along these lines, which

14:39

is like all of them, maybe

14:41

realize he had a point. And so I think

14:43

we're going to see that here. I'm

14:46

persuaded by your logic. I'm just telling you

14:48

right now, I am

14:50

like Charlie Brown at the football.

14:52

These bitches keep taking the football

14:54

away. That's totally fair. And look,

14:56

it's totally clear that at least

14:58

some of them cannot restrain their

15:00

anti-women, anti-reproductive freedom fervor. I'm talking

15:03

about you, Sam Alito. AKA Anthony

15:05

Constock. But

15:08

I don't think that there are five

15:10

who are going to do that again

15:12

right now on the eve of the

15:14

election. So just to again, underscore this,

15:16

because again, the top level line messaging

15:18

coming out of this case everywhere seems

15:20

to be they are not taking away

15:22

your abortion pills. And it's true, the

15:25

federal government seems like it's going to

15:27

win this case. The court is going

15:29

to say this particular challenge in this

15:31

particular case involving medication abortion can't go

15:34

anywhere. But note, this case

15:36

could come back with an avengeance

15:38

because Judge Kasmirik has already said

15:40

that some Republican led states can

15:43

intervene in the case to themselves

15:45

challenge medication abortion. So who

15:47

knows whether the case will come back in a

15:49

year with those plaintiffs. And a year

15:51

from now, depending on how the November

15:53

election works, and a year from

15:56

now, depending on however the November election goes,

15:58

the justices might be much more interested less

16:00

concerned about the political blowback from a

16:02

decision allowing the challenge to proceed,

16:05

maybe even ruling against the FDA. So I

16:07

think that again, before now, putting

16:10

even aside fetal personhood and Comstock, even

16:12

this case, this could be an interim

16:14

ruling that we could well see come

16:16

out differently in the very near term.

16:21

Almost like the voting rights victory, we saw an

16:23

Allen versus Milligan that was preceded by

16:25

actually a major voting rights loss that

16:27

shaped the midterm election in 2022. But

16:32

I digress because I don't want to continue

16:34

beating that dead horse, although it's

16:36

not as dead as I would like. Anyway,

16:39

so I'll just say here that it

16:41

seems like the justices are deferring a

16:43

lot of their firepower for after the

16:45

election and Republican candidates and supporters are

16:48

down for it because I think they

16:50

would actually like to keep this whole

16:52

Comstock-Furious issue under wraps so

16:55

that most of us in the

16:57

electorate won't understand that one of

16:59

the biggest issues in the upcoming

17:01

election isn't whether or not

17:03

there's going to be a Republican Congress

17:06

that can pass a nationwide ban, but

17:08

rather whether they can sneak in

17:10

a Republican president with a new

17:12

attorney general who is ready and

17:14

prepared to revive this zombie law

17:17

from 1873 and

17:19

begin enforcing it against individuals

17:21

providing abortion or distributing medication

17:24

or even implements used

17:26

for abortion. And again, they can do

17:28

all of this without ever getting Congress

17:30

and they just don't want us to

17:32

know about it. Indeed.

17:34

So a longer analysis of this entire case,

17:37

as well as the other cases the court

17:39

heard this week will be forthcoming on our

17:41

regular episode on Monday. But we wanted to

17:43

put this out into the world now to

17:45

equip you to be the best but actually

17:47

are in all of your cocktail party and

17:49

dinner party conversations, because we know you all

17:51

are talking about this and people need to

17:54

know what's at stake and what the court

17:56

is and isn't going to do and what

17:58

it might do in the future. So

18:00

get in formation. All

18:02

right, we'll leave it there and we'll be back in your

18:05

ears on Monday morning. StuRK's

18:11

Courtenay is a Cricut Media production hosted and executive

18:13

produced by Leah Lippmann, Melissa Murray, and Demi K.

18:15

Shaw. Produced and edited by Melody

18:17

Rovam, audio support from Kyle Seglen and

18:19

Cheryl Alanis, music by Mary Cooper, production

18:22

support from Madeleine Herringhauer and Mary Swartz. Seems

18:25

to be a very good story for sub-stu producing

18:27

and then Sarah Kavalaska for substitute editing. If you

18:29

haven't already, please subscribe to StuRK's Courtenay and your

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favorite podcastinar. If you never miss a new story,

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and you don't know how many people have done this show,

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