WHAT’S REALLY GOING HERE?
AS EARTH TILTS: (I) RFK JR. DEFINES THE VP JOB DOWN, UPENDS THE NASTY ’24 RACE. (II) SUPREME COURT LIKELY TO OK ABORTION PILL MAILING BUT TWO JUSTICES PITCH A STALE 1873 LAW TO IMPOSE A NATIONAL BAN.
PART II: SPRING CRAZY TIME BREAKS OUT AT THE SUPRME COURT
The Supreme Court has also been a major contributor to the seasonal outbreak of political event vertigo. In early March a majority finally agreed to only a modestly “urgent” schedule to hear and decide the vital issue of whether Trump, as he claims, is immune from federal criminal prosecution for any actions he undertook while in office, or at least those arguably at the “outermost edge” of his official responsibilities and cited by Special Prosecutor Jack Smith in his indictment. Smith specified several actions by Trump related to an orchestrated conspiratorial attempt to overturn the 2020 Electoral College results and obstruct their certification by Congress on January 6, 2021. Smith asserted that all such actions were definitively outside the scope of Trump’s official duties and constituted a scheme of self-interested criminal conduct.
Oral argument on the lower courts’ unanimous decisions that Trump lacks any immunity will not occur until the very end of the Court’s hearing calendar for this term in late April: at least they did put the hearing off to the next term beginning in October, which their procedures would have allowed. For the time being, only the Court’s tradition of announcing all the term’s pending decisions before the early days of July offers any likelihood that the appeal will be decided in time for a trial that could be finished before the November election. Rather than deciding yes or no regarding Trump’s immunity after leaving office for conduct while in office, however, the Court holding might formulate a first-of-its-kind generic standard for evaluating such presidential immunity claims and require the lower courts to apply it to Smith’s indictment before any trial could begin. The resulting further delay and predictable appeals would effectively quash any realistic possibility that Trump’s could be completed during this election year. Stay tuned for the April 25 oral argument.
More immediately, the Court’s March 26 hearing on another politically significant case produced some surprises that likely will have a major impact on the presidential campaign, regardless of whether Trump is immune from prosecution. The oral argument that day concerned a private group of medical professionals challenge to the Food and Drug Administration (FDA) initial approval in 2020 of the medication mifepristone that is used for abortions and other purposes, as well as its subsequent determinations in 2016 and 2021 to liberalize initial restrictions on access and use of that pill, allowing it to be mailed based on prescriptions obtained without doctor office visits and extending its availability through the first 10 weeks of pregnancy.
The Alliance for Hippocratic Medicine, an organization of doctors (and, as it turns out, dentists) who oppose abortions based on their religious beliefs and consciences, claimed that the FDA’s actions approving mifepristone use and distribution exceeded its statutory authority and did not follow required administrative procedures and research rubrics regarding assessment of the pill’s potential for causing harm to patients.
The Alliance also asserted standing to sue because the mifepristone’s extended availability and use would posed a significant likelihood that emergency hospital treatment would be necessary, exposing its members to the risk they might be compelled against their consciences to directly help complete a so-called “mail order” abortion, or otherwise be morally implicated in effecting such pregnancy terminations even in the very end stages of the abortion process when the fetus was no longer present in the woman’s body. This risk of “complicity” in what the doctors regard as sinful acts allegedly would do grievous harm their ability to exercise their with their religious and moral beliefs, as well as violate federal law that protects physicians from having to perform a procedures that offends their consciences.
At the March oral argument, the Justices spent only a modest amount of time on questions or comments about the FDA’s compliance with applicable procedures in assessing mifepristone’s safety and suitability for mail distribution, although some did pursue concerns about whether judges should ever be in the business of parsing scientific analysis of safety and efficacy of medication proposed for FDA approval. https://www.nytimes.com/live/2024/03/26/us/abortion-pill-supreme-court
Instead, several Justices focused on whether the plaintiff doctors’ and their organization’s claims of potential harm to their rights of conscience caused by the mere availability of mifepristone were sufficiently likely, imminent, and grave to merit consideration of a judicial reversal of the FDA’s decisions and imposition of a judicial ban on the abortion pill not merely from distribution by mail or common carrier but entirely from use in connection with any abortion whatsoever.
“During about 90 minutes of argument, most of the justices seemed doubtful that the plaintiffs, who do not prescribe abortion pills or regularly treat abortion patients, even had standing to bring the challenge. The justices, including several in the conservative majority, questioned whether the plaintiffs could show that they faced the moral harm they claimed to suffer from the availability of the pill, mifepristone….” Ibid.
The question boiled down to whether the doctors had “standing” to bring their case at all, which requires them to show they face concrete harm from the regulations they are asking the Court to overturn. Elizabeth Preloger, the United States Solicitor General arguing for FDA, as well as the counsel for mifepristone’s manufacturer Danco, asserted that the chance of such harm was highly speculative, remote, and irrelevant, given that existing law and typical hospital protocols already provide sufficient protection for their beliefs through federal conscience protections that combine to allow the doctors to opt out of care that they object to on moral or religious grounds and shift any required patient treatment to another physician (typically arranged in advance).
“Justice Ketanji Brown Jackson [also] said there was ‘a mismatch’ between what the anti-abortion doctors are claiming they have experienced and the remedy they are seeking. ‘The obvious common-sense remedy would be to provide them with an exemption, that they don’t have to participate in this procedure,’ Justice Jackson said. Noting that such a remedy already exists in the form of conscience protections, she said: ‘I guess, then, what they’re asking for in this lawsuit is more than that’. They’re saying, ‘Because we object to having to be forced to participate in this procedure, we’re seeking an order preventing anyone from having access to these drugs at all.’” (Emphasis added.) Ibid. See also https://www.bloomberg.com/opinion/articles/2024-03-27/supreme-court-scoffs-at-flimsy-abortion-pill-argument?srnd=homepage-americas.-03-27/supreme-court-scoffs-at-flimsy-abortion-pill-argument?srnd=homepage-americas.
Most importantly in terms of the complaining doctors’ request for a complete mifepristone ban, however, a “back-to-the-future” legal pathway for preventing anyone obtaining or using mifepristone -- or accessing an abortion procedure at all -- was put forward during the oral argument by Justices Samuel Alito and Clarence Thomas. They separately raised the possibility of applying (as the District Court judge and one Justice on the Fifth Circuit appellate panel had done in banning the mailing of mifepristone) the long dormant 1873 Comstock Act. That statute was enacted as an anti-pornography, pro-“chastity” measure, which among other provisions prohibited any distribution by mail (or, as later amended, by common carriers like FedEx or UPS today) of contraceptives and “{e]very article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use,” under pain of criminal prosecution. https://missouriindependent.com/2024/04/05/an-1873-law-banned-the-mailing-of-boxing-photos-could-it-block-abortion-pills-too/
The Act’s ban relating to contraceptives was repealed by Congress after the Supreme Court’s landmark 1965 decision in Griswold v. Connecticut (381 U.S. 479 (more)85 S. Ct. 1678; 14 L. Ed. 2d 510; 1965 U.S. LEXIS 228) and later cases holding that the Constitution provides both married and single persons a right of privacy that overrides state laws preventing the sale or use of such instrument of birth control. Decisions by lower federal courts in more modern times also limited the scope of the Comstock Act’s application to legal abortions, and successive n modern Justice Departments have effectively refrained from prosecutions. The Roe v. Wade decision, of course, made the Comstock Act’s abortion-related provisions unenforceable exactly 100 years after its passage. In the aftermath of the Dobbs holding that overruled the Roe/Casey line of cases, however, it is not surprising that the anti-abortion movement and ultra-conservative jurists are now attempting to reanimate Comstock.
Both Justices Alito and Thomas have crafted opinions in other controversial cases that virtually invite future litigation that would give them an opportunity to advance their preferred “originalist” and strict “textualist” jurisprudence. In Dobbs, for example, Thomas suggesting that its holding called into question the 59-year Griswold precedent upholding the Constitutional right to privacy in general and contraceptives in particular, as well as the far more recent Obergefell holding that same-sex marriages are a liberty interest protected by the Constitution. The fact that two long-serving Justices (not just a couple of radically conservative federal jurists in the Fifth Circuit are now on record suggesting that the Comstock Act’s anti-abortion provisions are alive and well is likely to stimulate further litigation based on the alleged “plain meaning” of those “never repealed” provisions. Christian Nationalist and other anti-abortion think tanks will step up to provide GOP-led legislatures with model “little Comstock Acts” designed to trigger federal cases that would make their way to the Supreme Court docket. More immediately in political terms, activists are already working with Trump’s planning team for a second term on a strategy for his Justice Department to apply the Comstock Act to prevent the mailing of any abortion drugs and materials, effectively banning all abortions without needing Congress to act.
“…[L]egal experts are concerned either Thomas or Alito — or both — could write a Comstock-focused opinion [in the mifepristone case]arguing the law is viable. Such an opinion could embolden a future GOP administration and anti-abortion groups to continue pressing forward with plans to enforce the Comstock Act in ways it hasn’t been enforced before, said Leah Litman, a professor at the University of Michigan Law School….“It’s encouraging; it’s like a sign of, OK, this has a chance of actually working, so let’s keep at it,’ she added.” Ibid. See also https://abcnews.go.com/Politics/what-is-comstock-act-supreme-court-abortion-pill-case/storyid=108395444&email=afb1f02d9c34936a265daa71d6e630d02298c7c4&emaila=38b303dd03bf112f0a12b9a4c026d63e&emailb=d8cff7e60a058d0ad6f3bf97ade763a43e0416c730a36d9bd9908f65c80a7b5b&utm_source=Sailthru&utm_medium=email&utm_campaign=3.28%2012:30%20Report%20EM
Recent commentaries in Slate magazine have noted how the conscience protection arguments based on “complicity in sin,” was advanced successfully in the Supreme Court decision in the Hobby Lobby and Little Sisters of the Poor cases to absolve private business owners and religious orders from compliance in even the most indirect and technical of ways with Obamacare’s insurance mandates regarding contraception. These ruling laid stepping-stones for those seeking a legal or political pathway to bring the Comstock Act’s abortion restrictions back to life now. That statute was itself a product of late nineteenth century fundamentalist religious revival (a kindred spirit for today’s Christian Nationalist fervor to interpret the Constitution to comply with their form of Biblical textualism). Comstock was and remains “a symbol of Victorian a sexual morality focused not on protecting fetal life but on discouraging illicit sex” that current conservative Christian legal and political activists seek “to reinvent as a de facto national abortion ban.” https://slate.com/news-and-politics/2024/03/conservatives-national-abortion-ban-supreme-court-comstock-plan.html
“Don’t let the jokes about how silly the Comstock Act seems, or how speculative the theory of standing is, get in the way of taking a serious look at the claims on offer. The plaintiffs say they are terrified that one day, a patient may walk into their emergency room suffering complications from a medication abortion prescribed by some other doctor. This patient may need their assistance completing the abortion or simply recovering from the complete abortion, which these plaintiffs deem ‘complicity’ in sin…. As was made plain in the oral arguments and briefing, activist doctors are no longer satisfied with personal conscience exemptions already granted under state and federal law; they now insist that nobody, anywhere, should have access to the abortion pill, in order to ensure that they themselves won’t have to treat patients who took one. At a minimum, they say, they should be able to radically roll back access to the pill in all 50 states to reduce the odds that one of these handful of objectors might someday encounter a patient who took it….’ https://slate.com/news-and-politics/2024/03/abortion-ban-erin-hawley-supreme-court.html?pay=1712086345806&support_journalism=please
There is no evidence that a Supreme Court majority would apply the Comstock Act to mifepristone. But the anti-abortion activists’ focus has already moved on (helped by Justices Alito and Thomas) to concentrate for the moment on supporting the presidential candidate most likely to consider using federal executive (rather than judicial) power at the highest level to apply the Act’s anti-abortion provisions to restrict abortions nationwide to the fullest extent possible without Congressional legislation.
“Voters have already rejected state abortion bans. Just imagine what most Americans would make of it if an already unpopular Supreme Court interpreted a law from 1873 as a sweeping, punitive zombie abortion ban. But worrying about the public’s reaction assumes the [Christian anti-abortion] movement is seeking to persuade voters rather than simply looking for ways to use power to enforce traditional family values and punish those who become pregnant or might provide them medical care. Anti-abortion groups are planning to revive enforcement of the Comstock Act if Donald Trump wins the presidency, claiming they would not need Congress to act.” Ibid.
CNN’S coverage of the mifepristone oral argument took special note of how the Act could be a way to circumvent the obstacles to getting any national abortion ban though a post-2024 Congress likely to be gridlocked on that issue either by the filibuster or the difficulty reaching even a simple majority vote given prevailing bitter partisan divisions.
“‘Comstock is part of this sort of stealth strategy to ban abortion nationwide,’ said David Cohen, a law professor at Drexel University. ‘If it's illegal nationally to mail … anything that is related to abortion, that would make it very difficult to operate an abortion clinic or to be an abortion provider. At its widest interpretation, the Comstock Act could prohibit mailing abortion-inducing medications, like mifepristone and misoprostol, but also ‘operating room tables and speculum and suction cannulas and every instrument used in an abortion,’ said Cohen.” https://www.cnn.com/2024/03/29/politics/comstock-act-alito-thomas-abortion/index.html
Proponents of using the Comstock route to restrict abortions nationally are quite clear on what they expect to accomplish in a second Trump Administration they materially help elect. “Sarah Perry, senior legal fellow for the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation, said a future Republican attorney general could prosecute any manufacturer that ships mifepristone through the U.S. Postal Service -- or a private company contracting with USPS. The reason we don’t see more involvement with Comstock in federal litigation is simply because you have to have a Department of Justice with the political will to actually go out and to enforce it, and to charge people with those types of violations,” Perry said. https://nevadacurrent.com/2024/04/05/an-1873-law-banned-the-mailing-of-boxing-photos-could-it-block-abortion-pills-too/
“Complicity in sin” and the Comstock Act thus will likely both find their way into many voters’ consciousness when they confront the 2024 ballots for the presidency, other offices, and other matters put to their choice. The question is, to what effect? Florida, for example, will in November nhave a proposal before its citizens to enshrine abortion rights in its Constitution in derogation of that State’s six-week abortion ban, with its strictly limited exceptions for rape and incest applicable only if documented by a police report or a restraining order. But if Comstock lives, a Florida voters’ decision to approve the proposal could die if a Trump Justice Department enforced the full scope of Comstock as well as the federal Constitution’s Supremacy Clause.
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” The Constitution of the United States, Article VI, Clause 2.
All three of the main Presidential and Vice- Presidential candidates will at some point be pressed to reveal their views on the current viability of the Comstock Act’s anti- abortion provisions. Trump and his running mate may have the toughest time with that question. He had suggested he personally favors a national abortion ban — somewhere between six and sixteen weeks, with the usual exceptions. He has now moved away from endorsing a national ban and instead fully embraced the leaving the matter to the states, a more traditional pre-election GOP “safe harbor” position that evades any question about “weeks.” A leading anti-abortion group, however, immediately called him out. “The president of Susan B. Anthony Pro-Life America said she was “deeply disappointed’ in Donald Trump’s position that states should decide abortion rights. “Antiabortion groups…have long endorsed a federal ban on abortion and have pushed conservative lawmakers to do the same. Allowing the states to decide their own abortion measures, they argue, would make the procedure available in some states led by Democrats and lawmakers who support abortion access.” https://www.nytimes.com/2024/04/08/us/politics/trump-abortion-reaction.html
Who knows what Trump will do if he is reelected? The man lies. His most conservative Christian base will press him on whether he is with them in terms of ordering the Justice Department to begin enforcing the Comstock Act, which does not require an Act of Congress or any decision of the “right” number of o weeks. Although they didn’t vote for her, they heard Nikki Haley’s reality check that there is no chance for sixty Senate votes in 2025 for a nationwide ban on abortion.
Giving the Comstock Act new life would, ironically, seem to violate the vow of the majority opinion in Dobbs that the Court must be “neutral” on abortion policy going forward, and leave that choice to the people and their legislatures in the individual states and Congress. At least in Dobbs, the Justices did not go on to say “never mind” –- the abortion decision train already left the station in 1873. In 2024, however, a very conservative couple of them suggested that the (all male) voters and Congress a century and a half ago may have settled key aspects of abortion law once and for all. Justices Alito and Thomas in the March 26 oral argument each suggested that Comstock’s abortion-related provisions remain a well-known matter of operative law.
“Thomas asked the attorney representing Danco Laboratories LLC, manufacturer of the brand name of mifepristone called Mifeprex, if the Comstock Act applied to the company. ‘The government, the solicitor general points out, would not be susceptible to a Comstock Act problem,’ Thomas said. ‘But in your case, you would be, so how do you respond to an argument that mailing your product and advertising it, would violate the Comstock Act?’
Thomas said that his problem with aspects of the case was that Danco Laboratories is “private, and the statute doesn’t have the sort of safe harbor that you’re suggesting….It is fairly broad and it specifically covers drugs such as yours,’ Thomas said.
“….
“Alito appeared to argue that the U.S. Food and Drug Administration should have considered the Comstock Act before relaxing previous restrictions on use, allowing mifepristone to be prescribed via telehealth and sent to patients through the mail.‘It didn’t say anything about it. And this is a prominent provision,” Alito said. “It’s not some obscure subsection of a complicated obscure law. They knew about it. Everybody in this field knew about it.’” (Emphasis added.)
When Justice Alito in 2022 was preparing his rather extensive opinion for the Dobbs majority purporting to cover comprehensively the history of abortion policy in America, did he simply forget to mention the Comstock Act abortion clauses that in he later said in 2024 hat “everybody in this field knew” back in 2000, 2016, and 2021, when the FDA was making its mifepristone decisions?
His Dobbs opinion turned on the proposition that no right not specifically spelled out in the Constitution (such as abortion access) could be inferred from broad Constitutional language like the Fourteenth Amendment’s due process clause unless that right was “deeply rooted in the Nation’s history and tradition.” He included an multiple-page Appendix detailing the key provisions of every state statute restricting abortion with civil and or criminal penalties enacted in the history of the U.S. prior to the Roe decision, but did not mention Comstock, the one anti-abortion criminal law that applied nationwide from its inception 1873. Its passage was only five years after the Fourteenth Amendment itself become effective, a proximity in time that Alito asserted in Dobbs was most significant in establishing his key point that the public around the time of ratification of the due process clause understood that no legal right to abortion was deeply rooted in American history or tradition. For Alito, just the opposite was true -- abortion had been significantly restricted or banned in most of the states. As Justice Alito put it in Dobbs:
“The dissent does not identify any pre-Roe authority that supports such a right—no state constitutional provision or statute, no federal or state judicial precedent, not even a scholarly treatise. …Nor does the dissent dispute the fact that abortion was illegal at common law at least after quickening; that the 19th century saw a trend toward criminalization of pre-quickening abortions; that by 1868, a supermajority of States (at least 26 of 37) had enacted statutes criminalizing abortion at all stages of pregnancy….”
One would think that mentioning the Comstock Act in Dobbs might have significantly strengthened his position.
On the other hand, were Justices Alito and Justice Thomas (whose concurring opinion in Dobbs also never mentioned the Comstock Act) not so much forgetful but as wary of bringing any attention in their opinions to that statute? A “premature” and technically unnecessary spotlight on the viability of Comstock could have created an even more furious public firestorm than they knew would come from withdrawing a 50-year-old Constitutional right of women. Legal critics of Dobbs (or even chief Justice Roberts) would have quickly realized that, with Roe gone, Comstock could be the explosive “other shoe” to impose a form of abortion ban nationally. Keeping quiet about Comstock in Dobbs was, in its fashion, a tactically “judicious” choice in 2022. Life tenure sometimes confers its own kind of pragmatism and patience.
Let’s assume for the moment, however, that Trump wins the 2024 election and instructs his confirmed Attorney General to begin enforcing the Comstock Act’s abortion provision to the letter, cutting the [now living] “people and their elected representatives in the States and Congress” out of their primordial “right to choose” what particular laws they want to live under concerning abortion, as affirmed in by the Dobbs majority and particularly emphasized in Justice Kavanaugh’s controlling concurrence. Trump’s enforcement of the Comstock Act abortion provisions would certainly be challenged in litigation that would most likely find its way to the Supreme Court. Seven of the nine current Justices did not follow up the Alito-Thomas line of questioning about Comstock in the mifepristone hearing, and have yet to speak or write their views on the current viability of what George Bernard Shaw, early in the twentieth century, derided as “Comstockery.” https://www.oed.com/dictionary/comstockery_n?tl=true
One of the most mortal political and courtroom “sins” is overreaching the voters’ true mandate or the rational limits of your case’s claim. In our democracy, we are compelled to put a lot of trust in juries and voters -- most often, they have the last word: perhaps even in this topsy-turvy election year.