The decision is unanimous, but it leaves open two routes Republicans could take to pull mifepristone from the market.
The Supreme Court’s decision in FDA v. Alliance for Hippocratic Medicine should be humiliating for the plaintiffs in this case, their lawyers, and for the lower court judges who signed on to this attempt to ban a commonly prescribed abortion medication.
The decision is unanimous — even Justice Samuel Alito joined the majority opinion! — and it holds that no federal court had jurisdiction to hear this case in the first place.
The case was an attempt to ban mifepristone, a drug that is used in over half of all US abortions.
Get the latest developments on the US Supreme Court from senior correspondent Ian Millhiser.
But while the Alliance decision is a victory against anti-abortion advocates’ attempt to ban mifepristone, it is only a temporary one. Justice Brett Kavanaugh’s opinion leaves open two ways that Republicans who oppose abortion could still ban this drug. And it also makes it likely that the Supreme Court will have to hear this case again, despite their initial ruling that the federal judiciary should not have heard this case to begin with.
Alliance is fundamentally a case about judge-shopping, a practice that sometimes allows litigants to choose which judge will hear their lawsuit. In this case, the plaintiffs — doctors who oppose abortion and organizations representing those doctors — selected Matthew Kacsmaryk, a longtime advocate for the Christian Right who then-President Donald Trump placed on the federal bench — to be their judge.
The plaintiffs were allowed to choose their own judge because Kacsmaryk’s Texas-based court assigns all lawsuits filed in Amarillo, Texas, to him. So all that these plaintiffs had to do to get Kacsmaryk to hear their case was file their suit in his home city.
Kacsmaryk’s opinion was, well, exactly what you would expect from a judge who is determined to fight abortion no matter what the law says. His 2023 decision struck down the FDA’s decision to approve the drug mifepristone in 2000, despite a six-year statute of limitations on such claims.
