It is a testament to how weak the plaintiffs’ case is that the justices seemed so skeptical. Erin Hawley, a lawyer for the far-right antifeminist litigation shop Alliance Defending Freedom and the spouse of the conservative US senator Josh Hawley, usually gets a much warmer reception at One First Street. But in Tuesday’s oral arguments in Alliance for Hippocratic Medicine v FDA – a lawsuit which seeks to challenge FDA approval of the abortion drug mifepristone, and specifically to reverse regulatory changes that made the drug more easily accessible – she was on the defensive.
The three Democratic appointees, along with the Republican justices Gorsuch, Kavanaugh and Roberts, all signaled at least some skepticism of her clients’ claims to legal standing. Amy Coney Barrett, the Trump appointee known for her maximalist religious commitments, struggled to help Hawley establish a convincing merits case to restrict access to the drug. And the far-right extremists Samuel Alito and Clarence Thomas spent their question time signalling their support for the Comstock Act, a long-obscure and once-forgotten 1871 statute that some anti-choice lawyers say could be used to ban abortion nationwide by executive order.
