Why Republicans secretly hope the Supreme Court rules in favor of the abortion pill

Supreme Court Abortion (Copyright 2022 The Associated Press. All rights reserved)
Supreme Court Abortion (Copyright 2022 The Associated Press. All rights reserved)

On Tuesday, the US Supreme Court heard oral arguments as anti-choice activists seek to overturn the US Food and Drug Administration’s approval of a drug commonly used to terminate pregnancies.

As my colleague Alex Woodward explained in his write-up of the oral arguments, even some of the conservative jurists that former president Donald Trump nominated to the bench seemed to express skepticism about reversing the FDA’s approval of mifepristone that happened in 2000.

Indeed, Justice Neil Gorsuch cast the ruling by Judge Matthew Kacsmaryk last year that threw mifepristone into peril as “rash”. He added that this week’s litigation, brought by a handful of doctors opposed to abortion, would be “turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule.”

Another group of Republicans might secretly pray that the Supreme Court allows mifepristone to stay on the market: Senate Minority Leader Mitch McConnell, House Speaker Mike Johnson — and even Trump.

On the surface, this might seem puzzling. Johnson is an ardent anti-abortion campaigner who worked for the Alliance Defending Freedom, the legal group leading the challenge to mifepristone. Trump nominated Kacsmaryk, the judge who suspended mifepristone’s FDA approval last year. And McConnell facilitated Kacsmaryk’s confirmation to the US District Court for the Northern District of Texas when Republicans controlled the Senate.

But Trump and McConnell turning the Senate into a judicial confirmation factory — indeed, McConnell got rid of the filibuster for Supreme Court confirmations because of Democratic opposition to Gorsuch — has been disastrous for Republicans politically.

The Dobbs v Jackson decision overturning Roe v Wade came as a result of Gorsuch, Brett Kavanaugh and Amy Coney Barrett’s confirmations, and it prevented Republicans from flipping the Senate when President Joe Biden had abysmal poll numbers. Republicans barely flipped enough seats to flip the House — which has made life in the majority miserable.

Similarly, the chief justice for the Alabama supreme court specifically cited Dobbs in his decision that ruled frozen embryos are legally protected children. That decision forced doctors to halt the practice of in vitro fertilisation (IVF) and put Republicans on the defensive, with Alabama’s Republican legislature subsequently passing a law to protect IVF.

On the national level, Republicans running for Senate and even Trump came out and said they supported IVF. This, despite the fact many anti-abortion activists celebrated Alabama’s ruling.

The issue has become a potent weapon for Democrats. Just this week, Democrat Marilyn Lands flipped a seat in Alabama’s state legislature in a district that had voted for Trump in 2020. Lands talked about her own abortion story on the campaign trail and specifically mentioned defending IVF.

As I’ve written in the past, defending abortion rights has proven success for Democrats not just in blue and purple states but even in deep red states. Democratic Governor Andy Beshear won re-election in McConnell’s home state of Kentucky largely on the back of an ad featuring a young woman who survived a sexual assault saying people should not be forced to carry pregnancies from rape.

Taking mifepristone off the market would be even more radioactive for Republicans. For one, medication abortion is the commonest form of pregnancy termination. According to the Guttmacher Institute, medication abortion accounted for 63 per cent of all abortions in 2023. As a result, Democrats could make hay out of the fact that a ruling against mifepristone could end up affecting most abortions in America, including in blue states.

Republicans already know that restricting the use of abortion medication is unpopular. In September, the House voted down a bill to fund the Department of Agricutlure, the FDA and related agencies because the bill would have prohibited the mailing of abortion pills. Many swing-district Republicans voted down the bill, recognising its toxicity. Representative Nancy Mace, the mercurial South Carolina Republican who once told me Republicans need to stop being “a**holes to women,” joined Republicans in killing it along with every Democrat.

It’s worth noting that mifepristone is used during the first ten weeks of a pregnancy. After that, other methods of abortion (such as surgical) are usually most appropriate. An AP-NORC poll from last year showed that 73 per cent of Americans support allowing abortion at six weeks and 51 per cent support it at 15 weeks. That means the public feels most comfortable with the time period during which mifepristone can be used.

In addition, allowing keeping mifepristone on the market prevents uncomfortable questions about resurrecting the Comstock Act, the 1873 law that prohibited mailing contraception, pornography or drugs “intended for producing abortion, or for any indecent or immoral use.”

Congress and Roe v Wade weakened the law, but Justices Clarence Thomas and Samuel Alito, who authored the Dobbs decision, both mentioned the Comstock Act when doing so. Allowing mifepristone to stay on the market would allow for Republicans in every race from the presidency downward to avoid voter scrutiny over such possible implications. Mifepristone surviving might enrage anti-abortion activists, but it would allow Republicans to have a better chance than they otherwise would have in 2024.

And another reason why McConnell might hope for a loss for the Alliance Defending Freedom? Its main lawyer arguing before the court, Erin Hawley, is married to one of his Republican nemeses, Senator Josh Hawley. She is far more effective at advancing conservative causes — having crafted reply briefs for the Dobbs decision— than her senator husband. What better way to stick it to Josh on the way out than to see the Hawley family fail?