SCOTUS Will Let You Have Your Mail-Order Abortions (For Now)
Yes, this is the third time we are writing this this month.
For the third time this month, I am happy to report that it is still legal, for now, to obtain mifepristone through telehealth services and subsequently through the mail. Hooray! For the time being!
The Supreme Court decided on Thursday to allow the remote prescribing and mailing of mifepristone until the case threatening to end the practice fully makes its way through the courts. No specific reasoning was given and the vote count was not revealed, but we do know that Justices Clarence Thomas and Antonin Scalia dissented … because of course they did.
However, the fact that the other judges did not, or at least did not do so publicly, feels like a good sign. One wonders if Gorsuch and Barrett are feeling some kind of way about Trump lashing out at them this week over their rulings on his tariff case despite the fact that, other than this one instance, they have mostly allowed him to use the shadow docket to let him do anything he wants.
"They were appointed by me, and yet have hurt our Country so badly!" Trump “truthed” on Truth Social on Sunday evening. "I do not believe they meant to do so, but their decision on Tariffs cost the United States 159 Billion Dollars that we have to pay back to enemies, and people, companies, and Countries, that have been ripping us off for years. It’s hardly believable!"
If anything, that particular ruling shows how incredibly loyal Alito is, as Italian-Americans as a people have been pretty livid about the way these tariffs have affected the price of “the good olive oil,” least of all because it provides an opportunity to explain the parameters of “the good olive oil” to those who might otherwise be unaware.
He’s not going to hear the end of that one at the next family gathering, I will tell you that much.
But I digress.
Alito, despite having initially allowed the telehealth prescribing and mailing of mifepristone to continue until Thursday, was quite miffed that the other judges decided to let it continue until things were settled in the courts. His issue was that it “undermines” the ruling the Court made in Dobbs to keep allowing doctors in states where abortion is legal to prescribe and mail to people in states where it was not, and that’s just not fair.
The Court’s unreasoned order granting stays in this case is remarkable. What is at stake is the perpetration of a scheme to undermine our decision in Dobbs v. Jackson Women’s Health Organization (2022), which restored the right of each State to decide how to regulate abortions within its borders. Some states responded to Dobbs by making it even easier to obtain an abortion than it was before, and that is their prerogative. Other States, including Louisiana, made abortion illegal except in narrow circumstances. But Louisiana’s efforts have been thwarted by certain medical providers, private organizations, and States that abhor laws like Louisiana’s and seek to undermine their enforcement.
Love how he put it as “restored the right of each state to decide how to regulate abortion” rather than “revoked the rights of women to make their own private medical decisions with their doctor rather than their state legislature.” He does have quite a way with words.
The fact is, however, these laws are always going to be “undermined,” whether he or the state of Louisiana like it or not. First, because we will all do our absolute best to make sure that they are undermined and to ensure that women in Louisiana and other abortion ban states are able to safely end their unwanted and nonviable pregnancies. Second, they will be undermined anyway because the question has never been about whether abortion is legal or not, because abortion has and will always happen whether or not it is permitted by law. The question is, and always will be, whether those abortions are safe or not.
That being said. It is not actually illegal for a citizen of Louisiana or of any other state to have an abortion. In fact, althoughy Republican legislators in the state have recently been fighting to charge those who have abortions with homicide, the current statutes still bar any criminal prosecution for it. It is not illegal for a citizen of Louisiana to travel to another state in order to obtain abortion medication or even to have a surgical abortion, as states do not have jurisdiction over their citizens beyond their borders.
All telehealth does is eliminate the need for a road trip.
If the doctor prescribing the pills is not doing anything illegal in their own state, and the person taking the medication is not doing anything illegal in theirs, then the only thing at issue is whether or not the pills can be sent through the mail.
Now, anti-choice freaks have been working real hard to convince us all that somehow, despite having been in regular use all over the world for several decades now, mifepristone is just so incredibly unsafe that it should only be allowed to be prescribed by a doctor, in person. However, that is not the purview of the Supreme Court or any court. That is the purview of the FDA, and the only drugs for which the FDA requires an in-person evaluation are those with the potential for abuse — opioids, narcotics, stimulants and depressants. No one is going around getting addicted to mifepristone, and getting prescribed something with no addictive properties by a doctor in person does not make it less likely that something will go wrong or ensure better treatment if it does.
After that, the only argument left is that it is not legal to mail drugs intended to cause an abortion, as per the Comstock Act, which has not been meaningfully enforced in decades outside of cases dealing with child pornography.
This, unsurprisingly, is Clarence Thomas’s angle here:
I write separately to note that, as Louisiana argued be-low, it is a criminal offense to ship mifepristone for use in abortions. The Comstock Act bans using “the mails” to ship any “drug . . . for producing abortion.” […]
Applicants are not entitled to a stay of an adverse court order based on lost profits from their criminal enterprise. They cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes. And, whereas it would “serve the public interest” to “reduc[e]” applicants’ “opportunity to commit crimes,” Zedner v. United States, 547 U. S. 489, 501(2006), a stay would have the opposite effect.
Oh no, not crimes!
But here’s the thing. Even if Comstock were not a zombie law, it does not actually even apply here, because, as per the best-titled Supreme Court case of all time — United States v. One Package of Japanese Pessaries (pessaries being a type of diaphragm), the Act is not meant to interfere with the practice of medicine.
Yes. In 1936, decades before congress eliminated the portions of the Comstock Act related to contraception, the court held that because the diaphragms had been sent from a doctor to a patient for a legitimate medical purpose, the Comstock Act did not apply.
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Additionally, I would like to point out that abortion ban states have no right to regulate activity in states where abortion is not banned, or make it more difficult for anyone in those states to have an abortion. Eliminating the ability to obtain mifepristone through telehealth and by mail would have exactly that effect.
Given the right-wing bent of both SCOTUS and the Fifth Circuit, it is, unfortunately, highly unlikely that reason and logic will prevail. These people just don’t want abortion to be legal, period, and that is probably how they are going to vote regardless of the merits of the arguments. We should be prepared for that, and if it does go that way, we have to be prepared to find another way — because, unlike Republicans, we actually do care about “life” and don’t want anyone to have to ruin (or lose) theirs because they couldn’t get an abortion.
PREVIOUSLY ON WONKETTE!
Logic has been tortured long past the point of safewording out. This bullshit is just ABSURD.
"Pessary" is a word I have not heard since HS sex ed. The way it generally works in Germany is that girls go on the pill as soon as they get their periods (It's obviously not as simple in practice but that's the general idea).
No fucking weird ass patriarchal performance needed and no reliance on shit that teenage hormones do not care about.
And if an abortion is needed, guess what, you'll go and get an abortion. The end.
Last time I checked, Germany has not fallen into the ocean.