The Weekly Sift

The mifepristone suit from Amarillo is so embarrassingly bad that even the Court’s conservative majority can’t justify doing what it wants.

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The anti-abortion-pill case that right-wing culture-war groups primed to get to the Supreme Court got to the Supreme Court. Oral arguments happened Tuesday, and did not go nearly as well as anti-abortion groups probably imagined when they filed the case. Even Amy Coney Barrett seemed skeptical.

There probably won’t be a decision until June, so there’s no sense going into great detail now. But there are a couple of things worth noting:

• When you grease the way for a case to make it to the Supreme Court, you wind up with a greasy Supreme Court case. Legally, this was a bad argument that never should have come this far, and even some conservative justices seemed embarrassed by it.
• US courts continue to entertain notions of “Christian conscience” that are so expansive as to be passive aggressive. The rest of us are expected to change our lives so that right-wing Christians can have a buffer zone around extensions of “conscience” they have intentionally constructed to control us.

I explained the greased slide that brought this case to the Supreme Court back when the case was first being heard in Amarillo, almost exactly a year ago: The Northern District of Texas, which contains Amarillo, has one judge who hears just about all the cases. That judge, Matthew Kacsmaryk, is a right-wing culture warrior who can be counted on to rule in the “right” way, independent of facts or the law. The Northern District sits inside Fifth Circuit, whose appellate court is not quite as lawless as Kacsmaryk, but has a similar right-wing bias and will not examine his rulings too closely.

So in this case, foes of abortion rights incorporated their group in Amarillo precisely so they could file their suit in Kacsmaryk’s court. (The Judicial Conference has since changed the rules to limit this kind of judge shopping.) Kacsmaryk did his part and issued a nationwide injunction stopping the sale of mifepristone. The 5th circuit cut that injunction down a little, leaving mifepristone legal but limiting the possibilities for prescribing it. The Supreme Court previously stayed both rulings pending its own examination of the injunction.

That’s what they were discussing Tuesday.

The big reason the case should never have come this far is the plaintiffs’ lack of standing. In non-legalese, they can’t show how the availability of mifepristone harms them, so there’s no injury for the court to try to correct.

According to the doctors, their concrete injury is that someone might take mifepristone, might experience medical complications, might go to the hospital for care, and then the physicians in question might have to complete the abortion despite their moral objections to doing so.

Standing is supposed to be real, not speculative. The injury is supposed to be either happening, or so close to happening that it seems bound to happen without an injunction. A maybe-maybe-maybe argument doesn’t give you standing. There’s a good reason for this requirement: Otherwise, judges could make pronouncements about any topic that interested them, and the awesome power our system gives the courts could be abused.

A lot of articles have covered the case’s standing issue. But I was pleased to see Dahlia Lithwick and Mark Joseph Stern raise the passive aggression issue in Slate. (They don’t use that terminology, which I started using in 2013.) Under questioning, plaintiff lawyer Erin Hawley (wife of the famously swift senator) made an even stronger claim than the quote above would imply. When you read “complete the abortion”, you probably pictured a woman taking mifepristone, her body starting to eject the fetus, but not quite succeeding in getting it out. She might then show up in an emergency room, where an ER doctor opposed to abortion might have to complete the removal of a fetus that is doomed but not yet entirely dead.

However, that grisly scenario is exceedingly unlikely. A far more likely complication (still rather uncommon) is that the woman takes mifepristone, miscarries, but then doesn’t stop bleeding afterward. In this scenario, the abortion is over, the fetus is dead, and now an ER doctor needs to treat a bleeding woman.

The plaintiffs don’t want to, because patching up a woman who has taken a drug to give herself an abortion would make them “complicit” in the abortion.

Hawley … then approached the lectern and cleared up any confusion: Yes, she insisted, treating a patient who has undergone a medication abortion violates the conscience of the plaintiff physicians even if there is no “live” fetus or embryo to terminate anymore. “Completing an elective abortion means removing an embryo fetus, whether or not they’re alive, as well as placental tissue,” Hawley told Kagan. So the plaintiffs don’t object just to taking a “life.” They also object to the mere act of removing leftover tissue, even from the placenta.

Of course, these doctors must remove “dead” fetal tissue and placentas all the time—from patients who experienced a spontaneous miscarriage. By their own admission, the plaintiffs regularly help women complete miscarriages through surgery or medication. Those women they will gladly treat. Other women, though—the ones who induced their own miscarriage via medication—are too sinful to touch. Before the plaintiffs can administer even lifesaving emergency treatment, they need to know the circumstances of this pregnancy loss: Spontaneous miscarriages are OK; medication abortions are not.

It’s impossible to imagine this logic being accepted in any non-abortion circumstance. Suppose a guy gets drunk and drives his car into a tree. When he shows up in the ER, would a doctor (maybe from a religious sect that forbids alcohol) refuse to treat him in order to avoid being complicit in his drunk driving? ERs don’t work that way. In any other circumstance, injured people show up and get treatment. The guy who stitches up participants in a barroom brawl doesn’t need to know what started it or who was right.

It is a twisted line of logic, one that should never have reached the Supreme Court in the first place. But it is also a product of the court’s past indulgence of outlandish claims about moral “complicity.” … All this is reminiscent of Little Sisters of the Poor, a case about a Catholic charitable group that was afforded an exemption from the Affordable Care Act’s contraception mandate. The Little Sisters were asked to check a box signaling to the government that they could not comply with the mandate, at which point the government would step in to cover their employees. But the Little Sisters refused, viewing this action—the checking of a box to opt out of coverage—as “complicity” in abortion because it would in turn trigger government payment for contraception (which they viewed as abortifacients). The Supreme Court and the Trump administration ultimately indulged the Little Sisters’ claim.

It may violate conservative political correctness to say so, but the Little Sisters were just being assholes in that suit. They invented an extravagant claim of conscience in order to screw up ObamaCare and interfere in other women’s lives.

Refusing to bake cakes or make web sites for same-sex weddings (other situations the Supreme Court has treated seriously) are similar examples of passive aggression. Going far beyond any legitimate Christian concern, such cases involve constructing an enormous hypersensitive conscience that will feel “complicit” in anyone’s behavior that it fails to control. Making the world safe for such a construction restricts the freedom of everyone else.

No non-Christian religious group would be allowed to do this. And Christians will keep extending such notions of “complicity” until courts tell them to stop. That should have happened a long time ago.