Alito’s Alarm on Abortion

Is access via mail to abortion medication making a mockery of the Supreme Court ruling overturning Roe v. Wade? That’s the warning from Justice Samuel Alito. He finds it “remarkable” that the Nine is allowing a medication, mifepristone, which “induces abortion,” to be sent through the mails to residents of states that have limited abortions. He calls it “a scheme to undermine our decision in Dobbs v. Jackson Women’s Health Organization.”Justice Alito was writing in dissent from the high court’s decision to let continue broad access to the abortion pill, at least while litigation plays out in lower courts. Riders of the United States Appeals Court’s Fifth Circuit had sought to halt the dispensing by mail of mifepristone. This policy, imposed following the high court ruling in Dobbs, stems from a Biden-era FDA regulation allowing the drug to be remotely prescribed.President Biden had instigated the rule change, aiming to “support women’s right to choose and to protect and defend reproductive rights.” Mr. Biden’s demarche, though, ignored the rights of states to make their own laws on the question of abortion. This amounted to a breach of the principle of federalism that undergirds the Constitution. Louisiana, to reassert its rights on this head, filed suit against the FDA. The rule allowing remote prescriptions of the abortion drug, the Pelican state said, led to “numerous illegal abortions in Louisiana” and cost the state thousands of dollars in “Medicaid bills for women harmed by mifepristone,” a Fifth Circuit panel reported. Louisiana asked the court to suspend the rule while the case is pending, a request granted by the appellate judges. The makers of the abortion drug appealed to the Nine, which sided with the drugmakers. Justice Alito, if his dissent is any guide, grasps the federalism implications of this dispute. The Dobbs ruling, he said, “restored the right of each State to decide how to regulate abortions within its borders.” To be sure, some states made it “even easier to obtain an abortion,” while others, “including Louisiana, made abortion illegal except in narrow circumstances.” Yet Louisiana’s “efforts have been thwarted,” he writes, by activist groups enabled by the FDA rule.States with less restrictive abortion policies, too, are preventing Louisiana from enforcing its own laws, Justice Alito reports, by enacting “shield laws” immunizing prescribers of contested medication. The result of these stratagems, Justice Alito laments, is that “more abortions now occur each month in Louisiana than they did before Dobbs.” This “would not have been possible,” he adds, had the FDA not acted “to facilitate mail-order abortions.”It’s hard to fathom why President Trump, who calls himself “the most pro-life president in history,” is maintaining the FDA’s lax regulation on mail access to abortion medication. Instead, it could fall to the Fifth Circuit’s federalism-minded riders to stand up for the rights of states like Louisiana to enforce their own laws. This dispute, too, could yet return to the Supreme Court, which could get a chance to reaffirm its vindication of states’ rights in Dobbs.

Alito’s Alarm on Abortion

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