Trump Supreme Court Justices May Deal Blow to Anti-Abortion Movement

Conservative justices on the Supreme Court signaled that they could deal a blow to the anti-abortion movement in the fight over mifepristone, a pill used in more than 60 percent of U.S. abortions.

On Tuesday, the court heard oral arguments in its first major abortion case since overturning Roe v. Wade, and justices across the ideological spectrum expressed skepticism about a nationwide ban on the abortion medication.

Some of the most notable questioning came from Justice Neil Gorsuch, an appointee of former President Donald Trump, who questioned why nationwide relief would be needed and, at one point, defended the concerns from one of his liberal colleagues.

"Justice Gorsuch seemed troubled by the idea of a lawsuit overturning what the federal government does (through the Food and Drug Administration, or otherwise)," Dan Urman, a law professor at Northeastern, told Newsweek.

He predicted that the Supreme Court would rule 7-2, with Justices Samuel Alito and Clarence Thomas dissenting. He said he believes Trump's three appointees would join the court's three liberal justices and Chief Justice John Roberts in ruling against the anti-abortion group that sued the FDA.

During Tuesday's arguments, Justice Ketanji Brown Jackson, an appointee of President Joe Biden, asked the attorney for the anti-abortion Alliance for Hippocratic Medicine why a conscientious-objecting doctor could choose not to perform abortions while allowing other Americans to have access to mifepristone.

As attorney Erin Hawley responded, Gorsuch interjected on Jackson's behalf, asking the counsel to answer his fellow justice's question and address the "rash" of universal injunctions that have emerged recently.

"There are zero universal injunctions issued during Franklin Delano Roosevelt's 12 years in office, pretty consequential ones, and over the last four years or so the number is something like 60, and maybe more than that," Gorsuch said. "They're a relatively new thing, and you're asking us to extend and pursue this relatively new remedial course which this court never adopted itself. Lower courts have kind of run with this."

"This case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule or any other government action," he added.

"We've seen these kinds of injunctions become much more prevalent over the past decade—against both Republican and Democratic policies," Supreme court analyst Steve Vladeck told CNN on Tuesday. "And although the Court has yet to rein them in directly, Justice Gorsuch has, as he did in today's arguments, repeatedly suggested that the justices ought to do so."

Slate legal analyst Mark Joseph Stern also said in a post on X, formerly Twitter, that Gorsuch's choice of words showed his "undisguised contempt for Judge Matthew Kacsmaryk," the Texas-based federal judge who agreed to move mifepristone off the market nearly a year ago.

"Neil Gorsuch expresses undisguised contempt for Judge Matthew Kacsmaryk's nationwide ban on mifepristone, condemning it as part of a 'rash' of unlawfully overbroad remedies awarded by unrestrained district courts," Stern wrote. "Obviously a bad sign for the anti-abortion advocates here."

Urman said he believes that the Supreme Court, with support from both wings of the bench, will ultimately rule that the Alliance for Hippocratic Medicine lacks standing to sue the FDA, giving the court cover at a time when its legitimacy is being questioned and allowing it to appear "'above the fray' and 'non-political.'"

"This lets the Justices, including those who voted to overturn Roe v. Wade in Dobbs, avoid the merits of the case," he said.