Donald Trump has fared better than most Republicans in navigating what should be an impossible issue for the GOP: abortion. Afraid of alienating its base and donors, the party has staked out positions that appear deeply unpopular with most voters. Trump’s solution, it seems, is to confuse voters about what he thinks and what he would do — and implying that he isn’t interested in doing much of anything at all in a second term. That, in a nutshell, is what Trump’s talk of states’ rights boils down to: if voters don’t like what is happening with abortion, they should blame someone else. The Supreme Court chose not to throw a wrench into his plan Thursday — but it may still do so before the end of its term.
The court had two major abortion cases this term, either of which could have changed the narrative Trump’s campaign has worked so hard to construct. The first case began when the Alliance Defending Freedom, a leading litigator in the conservative Christian legal movement, argued that the FDA never had the authority to approve mifepristone or lift restrictions on it — and that the Comstock Act, a federal obscenity law, operated as a ban on mailing abortion-related items. If the plaintiffs had been successful, they would have dramatically changed access to the method of abortions used by most Americans who end pregnancies — and would have shut down a method used by patients in ban states.
What Trump won’t mention is that the threat to mifepristone is far from over.
Thursday’s decision in Food and Drug Administration v. Alliance for Hippocratic Medicine held that the plaintiffs did not have standing to sue. The ruling is not a big surprise: the plaintiffs’ standing arguments have always been catastrophically bad — so bad that every justice on a frequently divided Supreme Court rejected every single one. The upshot in the near term is that access to mifepristone will remain unchanged — at least for now.
That’s good news for the abortion-rights movement, but even better news for Trump. Conservative activists have long vowed that a Trump Department of Justice will enforce the Comstock Act as a ban on mailing any abortion related item. Trump, for his part, has experimented with various ways not to answer the question — most notably promising to issue major policies that never materialize. Had the court said something about Comstock, it would have made it much harder for Trump to keep dodging questions about the statute.
And the court siding against the plaintiffs reinforces Trump’s narrative that the federal government has little to do anymore with the regulation of abortion. The justices’ ruling leaves the status quo intact: conservative states like Louisiana treat mifepristone as a controlled substance and criminalize possession of it without a prescription, while progressive states protect it, and voters are able to weigh in at least in some instances through ballot initiatives. Trump can point to Thursday’s ruling as evidence in taking credit for the demise of Roe when appealing to conservative voters, while assuring swing voters and independents that a vote for him won’t do much to change abortion access after all.
What Trump won’t mention is that the threat to mifepristone is far from over. Other potential plaintiffs such as the states of Missouri and Kansas are waiting in the wings to argue that, unlike the ADF, they do have standing to bring the same claims. If Trump wins, there are other strategies for his administration to shut down access to mifepristone: the FDA might regulate mifepristone differently, and the Justice Department might interpret the Comstock Act differently, and all of that could put questions about mifepristone back before the Supreme Court.
Even for Trump, Thursday’s ruling might be good news only for so long. There is another major abortion ruling coming from the Supreme Court later this month — this one on emergency access to abortion. The Biden administration took the position that the federal Emergency Treatment and Labor Act requires access to emergency abortion that is forbidden by some state laws — including, in this case, Idaho’s abortion ban.
Despite Trump’s claims, the federal government is hardly going to leave abortion to the states.
At oral arguments earlier this year, the Supreme Court seemed poised to hand Idaho a victory, though the justices seemed fractured about why and how big that win would be. Regardless of the scope, a ruling for Idaho would put Trump’s story about states’ rights in a different light. It would remind voters that the Supreme Court — and a possible President Trump — would not step in if a state eliminated all exceptions to abortion bans, or if exceptions were obviously ruining the standard of care pregnant patients experience during emergencies.
More fundamentally, such a ruling would also remind voters that despite Trump’s claims, the federal government is hardly going to leave abortion to the states. Nor will the Supreme Court, which vowed to return the issue to the people and the elected representatives, leave the issue alone. No matter how much Trump wants abortion on the backburner in 2024, neither candidate controls how it will be debated. The looming abortion ruling will be the latest example of that, but you can bet it won’t be the last.
