WHAT WE'RE READING
The morning read for Wednesday, Nov. 6

By Ellena Erskine
on Nov 6, 2024 at 11:16 am

The justices are scheduled to hear oral arguments in Facebook, Inc. v. Amalgamated Bank this morning, a securities fraud dispute stemming from the Cambridge Analytica data breach. Each weekday, we select a short list of news articles and commentary related to the Supreme Court. Here’s the Wednesday morning read:

• Trump Victory Could Mean New Supreme Court, GOP Pollster Says (Kaitlin Lewis, Newsweek)
• Abortion rights advocates win in 7 states and clear way to overturn Missouri ban but lose in 3 (Geoff Mulvihill & Christine Fernando, The Associated Press)
• How Trump Could Ban Abortion Without Congress (Mary Ziegler, Politico)
• Loper Bright Oral Arguments Get Mixed Reception at D.C. Circuit (Taylor Mills, Bloomberg Law)
• Anti-vax doctors urge SCOTUS to open airwaves to medical disinformation (Kelsey Reichmann, Courthouse News Service)

Posted in Round-up

Recommended Citation: Ellena Erskine, The morning read for Wednesday, Nov. 6, SCOTUSblog (Nov. 6, 2024, 11:16 AM), https://www.scotusblog.com/2024/11/the-morning-read-for-wednesday-nov-6/

ON THE BENCH

Opinion | How Trump Could Ban Abortion Without Congress
A new lawsuit targeting mifepristone presages a broader attack on abortion rights.

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Opinion by Mary Ziegler and Reva Siegel
11/04/2024 02:00 PM EST

Mary Ziegler is a law professor at the University of California, Davis. Reva Siegel is a law professor at Yale Law School. They are co-authors of the forthcoming Yale Law Journal article, Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It.

The Supreme Court rejected a challenge to abortion drugs just a few months ago, but anti-abortion forces are already back with a new lawsuit. The suit would have a devastating impact on abortion rights across the country. But even if it doesn’t succeed, it’s part of a strategy that former President Donald Trump could use to ban abortion nationwide if he wins the White House — even without action from Congress. ... Trump has said he would veto a federal abortion ban if it landed on his desk, but the centerpiece of the latest push targeting abortion rights would not require passage of a new law. Instead, it’s the reinvention of one already on the books: the Comstock Act, a 19th-century obscenity law that conservatives claim — with little support in the law’s history or text — is a de facto, no-exceptions ban on mailing, receiving or using the internet to order any abortion-related drug or paraphernalia. On conservatives’ interpretation, the law would make it illegal not just for patients to receive abortion medication through the mail but for doctors to perform abortions in hospitals, because they’d be unable to receive necessary medical equipment and supplies.

Widespread support exists on the right to “revive” Comstock. Virtually every major anti-abortion organization has embraced a Comstock strategy; the Federalist Society recently publicized it; and it’s included in Project 2025, the policy blueprint for a potential second Trump administration that became a political liability for Trump. Sen. JD Vance, before he became Trump’s running mate and sought to veer to the center, also called for the Justice Department to enforce the Comstock Act. ... Arguments about Comstock also figured centrally in the recent challenge to the FDA’s approval of mifepristone, a drug used in a majority of abortions in the United States. In that case, Food and Drug Administration v. Alliance for Hippocratic Medicine, the Supreme Court rebuffed abortion opponents in June by ruling the plaintiffs didn’t suffer enough of an injury to confer standing to sue. ... Now, three conservative state attorneys general are back with a new Comstock-focused plan to undermine access to mifepristone. The new lawsuit may have as many problems as the last one, but it’s a powerful reminder that conservatives are deadly serious about using the Comstock Act to advance their anti-abortion agenda. The plaintiffs are hoping that the Supreme Court’s conservative supermajority will embrace this reading of Comstock no matter who is in the White House. But even if the suit fails, a Trump Department of Justice could enforce this reading of Comstock — against patients or doctors in any state.

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But the revival of the Comstock Act is about more than mifepristone. ... After the fall of Roe, the anti-abortion movement embraced a new goal: federal recognition of fetal personhood — an objective that, activists hope, would make state-level protections for abortion rights unconstitutional as a matter of federal law. But recognition of fetal personhood doesn’t seem realistic in the near term. Neither does passage of a new federal law prohibiting abortion from the moment of fertilization. That’s the other reason the Comstock Act remains so important to abortion opponents: They could enforce it as it never has been enforced, as a no-exceptions ban on abortion that Americans would never vote to enact. ... This scenario becomes very plausible if Trump wins on Tuesday.

A Trump Department of Justice would probably start by enforcing the Comstock Act against companies that ship mifepristone or against so-called shield doctors in states that protect abortion providers who mail pills into states with abortion bans. But there is no reason to think it will stop there. The Comstock Act does not define the term “abortion,” and some anti-abortion advocates define common contraceptives, including emergency contraceptives, IUDs and the birth control pill, as abortifacients. And the statute’s language about obscenity reaches well beyond abortion to address a vague and broadly defined category of items “for indecent or immoral use” — language that could be applied to PrEP drugs for HIV prevention or medications used for in vitro fertilization or gender-affirming care. ... Even if the suit from the state attorneys general ultimately fails, the Supreme Court’s conservative supermajority could easily defer to a Trump DOJ’s anti-abortion interpretation of the Comstock Act. Justices Samuel Alito and Clarence Thomas have already signaled that they may be willing to enforce the Comstock Act to operate as a no-exceptions ban.  

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