Jun 17, 2024

The Supreme Court's abortion pill ruling.

Image: Robin Marty / Flickr
Image: Robin Marty / Flickr

Plus, a reader question about trans athletes at the high-school level.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 13 minutes.

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Today, we are covering the Supreme Court's ruling on the common abortion pill mifepristone. Plus, a reader question about trans girls in high-school sports.

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Did you miss it?

On Friday, we released a members-only newsletter on our favorite things from the last few months. This is something we used to do periodically in Tangle, but we haven’t done one since 2021. Here is some feedback we got to the newsletter:

  • “The music recommendations were the best! In general, I really enjoyed this ‘favorites’ list.”
  • “This was cool! Keep this style coming!” 
  • “I love this. It was my first but I hope not my last.”

The recommendations were for members only. You can read them here, and subscribe to unlock the full edition.


Quick hits.

  1. The Supreme Court overturned a Trump-era ban on bump stocks, gun attachments allowing semi-automatic weapons to fire at a rate similar to fully automatic firearms. (The ruling)
  2. The Justice Department said Attorney General Merrick Garland won't be prosecuted for contempt of Congress after he refused to turn over audio recordings of President Joe Biden's classified documents interview. (The decision)
  3. The Israeli military announced a tactical pause in fighting to better facilitate aid trucks trying to access Gaza's north-south highway. (The pause) Separately, the U.S. imposed sanctions on non-governmental Israeli groups thwarting Gaza aid deliveries (The sanctions), and Prime Minister Benjamin Netanyahu dissolved Israel's war cabinet. (The dissolution)
  4. More than 260 million Americans are expected to experience temperatures exceeding 90°F by this Friday, with many heat indices expected to top 100°F. (The heat wave) Separately, a fast-moving wildfire is spreading north of Los Angeles, with over 14,000 acres already burnt. (The fire)
  5. United States Surgeon General Dr. Vivek Murthy said he was going to push for a warning label on social media platforms advising parents that the platforms might damage adolescents’ mental health. (The warning)

Today's topic.

The Supreme Court’s abortion pill ruling. On Thursday, the court unanimously rejected a lawsuit brought by pro-life medical groups and doctors that aimed to restrict access to mifepristone, a drug commonly used in medication abortions. The justices did not rule on the merits of the arguments, instead dismissing the case because the plaintiffs lacked standing, or a legal right to sue. 

Back up: In 2022, a group led by the Alliance Defending Freedom filed a lawsuit in Texas alleging the Food and Drug Administration (FDA) both lacked the authority to approve mifepristone for sale in the U.S. and failed to properly evaluate the drug's safety and effectiveness. In April 2023, U.S. District Judge Matthew Kacsmaryk sided with the plaintiffs, suspending the FDA’s approval of mifepristone and ruling that the agency’s initial approval in 2000 as well as its authorizations of expanded access in 2016 and 2021 were unlawful. Upon appeal, the 5th U.S. Circuit Court of Appeals upheld the FDA’s initial authorization but backed Kacsmaryk’s decision to roll back expanded access to the drug. Then, the Supreme Court paused the lower court’s ruling and agreed to hear the case — Food and Drug Administration v. Alliance for Hippocratic Medicine — in March. Mifepristone remained available while the court heard arguments and deliberated. 

Since 2000, more than 6 million patients in the U.S. have taken mifepristone, and 63% of U.S. abortions in 2023 were medication abortions. As of 2022, the FDA reported 32 deaths related to the drug. If the Supreme Court had upheld mifepristone restrictions, some healthcare providers said they would have prescribed patients seeking a medication abortion misoprostol alone — traditionally part of a two-drug regimen alongside mifepristone — potentially limiting the procedure’s effectiveness.

You can read our previous coverage of this case here and here.

The court’s 9-0 decision firmly rejected the plaintiffs’ core argument to establish their standing: That they could be harmed if made to care for patients who took mifepristone prescribed by another doctor. Writing for the court, Justice Brett Kavanaugh said the FDA’s approval did not injure the plaintiffs directly, as they were not personally required to prescribe the drug. 

"Under Article III of the Constitution, a plaintiff's desire to make a drug less available for others does not establish standing to sue," Kavanaugh wrote, adding that the challengers did not offer a single example of their scenario occurring. 

The court also found that other potential harms caused by mifepristone access to anti-abortion doctors — such as an increased likelihood of being sued and increased insurance costs — were “too speculative or otherwise attenuated to establish standing.” 

Pro-choice advocates expressed relief at the ruling but warned that further challenges were coming. “This may be a temporary reprieve, as other opponents of abortion are waiting in the wings to bring another challenge to mifepristone,” said Fatima Goss Graves, president and CEO of the National Women’s Law Center.

Erin Hawley, lead counsel for the plaintiffs, said the outcome was disappointing but still offered hope for the pro-life side. “The Supreme Court was crystal clear that pro-life doctors do have federal conscience protections, even in emergency situations,” Hawley said. “So that’s a huge win for the pro-life cause.”

The Supreme Court’s ruling sends the case back to the lower courts. Three states — Idaho, Kansas, and Missouri — also joined the case earlier this year and are likely to remain involved. Since the Supreme Court only specified that doctors lack standing, these states could still argue they have a right to sue over mifepristone’s regulation. 

Today, we’ll share arguments from the left and right about the court’s decision. Then, my take.


What the left is saying.

  • The left is relieved by the decisive ruling but alarmed that the case reached the Supreme Court.
  • Some worry that access to abortion medication will be in jeopardy if Trump wins a second term.
  • Others say the court sent a clear message that the lower courts went too far.

The New York Daily News editorial board wrote “the Supreme Court averts disaster with mifepristone ruling.”

“This case should have never gotten so far. A divided high court’s unanimity here makes clear just how ridiculous this effort was, particularly since the court never gets above the fundamental issue of standing. Of course the plaintiffs here — doctors who maintained they’d suffer practical and personal hypothetical injuries from having to treat patients suffering from the exceedingly rare complications of mifepristone — had no right to challenge this federal regulation,” the board said. “Any first-year law student could have answered that question right on the exam, yet this had to go up to the Supreme Court for the simple reason that the plaintiffs could rely on sympathetic lower court judges to move things along.”

“All of the legal and procedural questions around this case, while worth dissecting, shouldn’t obscure the base reality of what has happened here: a group of dark-money funded conservative doctors attempted to upend one of the most reliable tools for abortion access in this country,” the board wrote. “While we’re happy that the court reached the decision it did, we can’t commend them too much given that they unleashed this in the first place through their ideologically-driven overturn of Roe v. Wade, including the votes of several justices who had said in their confirmation hearings that they viewed it as settled law.”

In Slate, Reva Siegel and Mary Ziegler argued the court “just created a road map for Trump to ban abortion nationwide.”

“The decision rejecting standing still allows the anti-abortion movement to renew its challenges to the FDA’s authority, continue its efforts to reinvent the 19th-century Comstock Act as a national ban on abortion, and employ conscience objections to block access to health care,” Siegel and Ziegler said. “In Alliance, the court expresses no concern about the impact of a health care refusal on patients—even when those patients face life-threatening medical emergencies. Instead of explaining that institutions will coordinate respect for the conscience of an objecting doctor with protection for a patient’s interest in preserving life or health, as it had in earlier cases, the court reasons as if there were no competing interests to consider.”

“The court seems to anticipate the possibility of a Trump administration that could radically limit access to abortion,” Siegel and Ziegler added. “Kavanaugh paints a picture very different from the one announced by the court in reversing Roe and, more recently, by Trump on the campaign trail—one in which each state is left to set its own policy and state-by-state resolution de-escalates a polarized conflict. Instead, Kavanaugh suggests, disgruntled abortion opponents can take their concerns to the federal government, which can impose rules rejected by most states and the voters who live in them.”

In Bloomberg, Noah Feldman said the ruling “sends a message about abortion politics.”

“The ruling tells us mostly that, in a presidential election year, with the Dobbs decision behind them, the justices didn’t want to issue a decision that could have caused a national uproar by further limiting abortion access. It may also be a subtle signal to conservative judges in lower courts,” Feldman wrote. “The court held that the anti-abortion doctors who brought the case didn’t suffer any concrete injury when the FDA made mifepristone more easily available by mail and telemedicine. If that sounds sensible and correct, that’s because it is. But conservative lower courts had found that standing did exist because it was possible to imagine some set of circumstances in which one of these doctors might have been harmed.

“The Supreme Court’s conservative justices had the option of agreeing with that logic. But they did not. By holding that there was no standing, the justices were able to throw out the pro-life doctors’ case without saying anything whatsoever about mifepristone or the FDA’s approval processes,” Feldman said. “To careful Supreme Court watchers and legal insiders, the ruling is full of meaning and messages. Above all, it can be read as a signal that, having won most of its big-ticket conservative wish-list cases during Biden’s first term in office, the majority would prefer not to enrage the general public any further than it already has, especially in an election year.”


What the right is saying.

  • The right is disappointed by the ruling but sees a path to regulating mifepristone with a Republican president.
  • Some say pro-life advocates will continue to fight against the drug’s approval.
  • Others fear the court is allowing potential public backlash to sway their decisions.

National Review’s editors wrote “the poison pill escapes its day in court.” 

“This is a defensible, if disappointing, outcome. The Court’s job is to resolve disputes between parties with a stake in the case, not to sit as a general reviewer of the legality of all government action… the Court recognized, properly, the imprudence of creating a general right of doctors to sue whenever any loosening of any government regulation could arguably cause injury or illness that requires medical attention,” the editors said. “The silver lining in the decision is that the Court emphasized — without dissent — that pro-life doctors cannot be forced to prescribe abortion pills and that doctors whose conscience rights were violated would have standing to sue.”

“The Biden administration’s persistent strategy of raising standing issues as a defense to illegal executive action was, in this case, rewarded. But what the executive branch giveth, the executive branch can taketh away. A pro-life FDA could reconsider some of its past errors. A pro-life Justice Department could take seriously the binding nature of federal statutes, thus safeguarding states’ ability to protect unborn lives. A restrained judiciary simply means that the real work often falls to the democratic branches. If that means that pro-lifers have to take the long view, the movement has a lot of practice.”

In The Daily Signal, Thomas Jipping said the court’s decision ”does not mean that mifepristone is safe.”

“The ruling neither vindicates the safety of mifepristone, nor addresses whether it should be available. It shows only the limits of litigation as part of the strategy to protect women and girls from this dangerous drug,” Jipping wrote. “This decision does not mean that mifepristone is safe; it isn’t. Nor does it mean that the FDA followed a credible and objective decision-making process; it didn’t. This case was about how the FDA made its decisions, not what decisions it made.”

“The litigation brought by these brave and determined plaintiffs, however, has exposed the aggressive abortion agenda of the Obama and Biden administrations and their willingness to put women and girls at greater risk to promote it. Powerful government agencies make decisions and issue regulations that dramatically affect the lives of all Americans,” Jipping said. “Even though this lawsuit was ultimately unsuccessful in holding the FDA accountable for its reckless decisions, efforts to protect women and unborn babies from abortion drugs will continue.”

In CNN, Carrie Sheffield wondered “is the abortion pill ruling a result of the backlash to Dobbs?”

“I disagree with the court’s ruling that these doctors do not have standing. The fact that this case was successfully litigated by the plaintiffs under lower federal courts supports their claim to have standing,” Sheffield wrote. “But even with its ruling that the plaintiffs lacked standing, the Supreme Court could have used the opportunity to offer some discussion of the core issues in its opinion. Instead, the court took a narrow view, clearly unwilling to consider whether chemically induced abortions from mifepristone pose undue risks to women.”

“The abortion pill decision raises questions for pro-life activists like myself who are concerned that the political backlash against the Supreme Court’s 2022 Dobbs ruling striking down Roe v Wade… is dissuading the justices from making substantive rulings on important cases on abortion,” Sheffield said. “When major but controversial legal issues are ignored in favor of issuing narrow rulings on technicalities, it appears that Roberts is letting politics and criticism influence his decisions… that would be unfortunate for not just pro-life activists but all Americans, who deserve a court concerned with fidelity to the law rather than mass opinion.”


My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.

  • The court was right to shut down this case due to lack of standing.
  • Even if the court heard the case on its merits, I still don’t think this challenge had any real chance of going anywhere.
  • The only reason this case got so far is due to judge shopping, and I hope that issue gets addressed soon.

Supreme Court cases are often the most complicated issues we cover. Naturally, these cases make it to the Supreme Court exactly because they are so fraught, so difficult to resolve, and so complicated that it takes the nine most-qualified people on the planet to answer the legal question at hand.

But this was not one of those cases.

The first few times we covered this case, I wrote by far the most black-and-white, straightforward assessment of a case headed to the Supreme Court that I have ever written in Tangle. And what I wrote in April of last year is still relevant today:

"Judge Kacsmaryk is wrong. He has overstepped, bent the law to match his activism, and opened a can of worms that both undermines the legitimacy of our courts and further pushes the envelope on what politically motivated judges are willing to do in public view. Let me be clear: The plain contours of the argument against Kacsmaryk are not just being made by liberals. Conservative writers and pundits assessing this honestly — whether they are The Wall Street Journal editorial board (under "What the right is saying") or writers from Reason Magazine — concede the obvious: The plaintiffs don't have standing, the approval is beyond the statute of limitations to be challenged, and Kacsmaryk ignores decades of precedent on laws like the Comstock Act."

In his opinion for the unanimous court, Justice Brett Kavanaugh went through the challengers' claims to standing one by one, making it clear why each argument was insufficient.

The doctors and medical groups argued that they could be forced to treat women who suffered complications from taking mifepristone. But Kavanaugh noted that the challengers had failed to show a single case where this had happened, and explained that there are already laws on the books preventing any doctor from acting against their conscience.

Similarly, Kavanaugh shot down the argument that having to treat women suffering complications from mifepristone would divert hospital resources or open doctors up to being sued, calling the link between that and the FDA's approval process "too speculative or otherwise attenuated" to qualify as standing. Under that logic, he argued, doctors could sue over any public policy — like emergency room doctors suing over a raised speed limit or trauma surgeons suing over reducing gun control laws.

Finally, the court also dismissed the group’s claim to associational or organizational standing. In this case, the medical groups tried to sue on behalf of their members, saying that the FDA had impaired their groups’ ability to provide services and achieve their organizational missions because they had to spend money to oppose the FDA's decisions. They also argued that if their group was not granted standing then no plaintiff could be, which the court similarly waved off.

In sum, the unanimous decision was a thorough takedown of the challengers' right to sue, as it should have been. The court did not touch the merits of the argument so I won't either, other than to say that I think a ruling on the merits would have been similarly lopsided.

Kacsmaryk’s ruling was self-evidently extreme and disingenuous, as shown by the way conservative media outlets covered it a year ago (The Wall Street Journal editorial board said Kacsmaryk made "several legal leaps", a classic mealy-mouthed concession that he was ignoring the law). Now that the case is over, we should all be asking how it got this far in the first place. And the answer is as interesting as it is frightening. Repeatedly now, activist groups from the right and left have been taking cases to little-known but strongly opinionated federal judges like Kacsmaryk in order to make a run at the Supreme Court. These partisan judges are providing back doors to the high court, clogging up a docket that can't afford to be clogged. 

This problem has become so pervasive it has a name: "judge shopping." Like gerrymandering, it's a both-sides issue that seems to be getting worse every year. As for solutions, the U.S. Judicial Conference proposed a potential reform in March to randomly assign national injunction cases among a district's judges. That is, a challenger seeking an injunction (which can temporarily pause enforcement of a law) cannot also get to pick their judge. Even though it caused quite a bit of controversy, I think this is a sensible response.

Whatever the solution is, we clearly need one. The court's 9-0 decision here speaks volumes, and should put this issue to rest; but if we want the court to avoid hearing cases like this, we’ll have to address the process that left it examining a case it never should have had to deal with in the first place.

Take the survey: How accessible do you think mifepristone should be? Let us know!

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Your questions, answered.

Q: Do you know what the percentage is of trans girls relative to all girls in high school girls' sports?

I assume the numbers would be less than half a percent, but I don't know for sure.

— Matthew from Boston, MA

Tangle: It's worth saying from the start that we don’t even know how many transgender athletes are competing in the NCAA, which would be a much easier figure to track. So, I can give you a best guess, mostly because that’s all we have for the count of transgender high-school athletes: guesses.

One researcher estimates that of the roughly 225,000 female athletes in the NCAA, about 50 are transgender. If we assume that high school sports have about the same proportion, then that would be one in about every 4,500 — much less than one percent (that's about .02%).

But I really don’t know if any of that is true. First of all, estimates on the number of transgender adults in the United States vary widely — let alone estimates of high schoolers, who I imagine would be less likely to self-report. Secondly, the number I gave above of transgender female athletes in the NCAA is just an estimate from one researcher. And since most of the sources I found used that same estimate, it’s hard to get a wider understanding of what the reality could be.

So my best guess is almost as good as yours. That being said, I think half a percent is probably far larger than what the actual number is.

Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.


Under the radar.

The United States oversaw a clandestine program in the Philippines to sow doubt about the safety and efficacy of Sinovac, China’s Covid-19 vaccine, according to a new Reuters report. The program to undermine Sinovac, which started under former President Donald Trump and continued into the first months of Joe Biden’s presidency, was considered “payback” for China’s efforts to blame Washington for the pandemic. One typical social media post produced by an account run by the U.S. military read “Covid came from China and the VACCINE also came from China, don’t trust China!” Health experts called the ploy indefensible, saying it put innocent lives at risk in the Philippines, a country that had been hit especially hard by the pandemic. Reuters has the story


Numbers.

  • 6%. The percentage of abortions in the U.S. that were medication abortions in 2001, one year after the FDA approved the first abortion pill, according to the Guttmacher Institute. 
  • 39%. The percentage of abortions in the U.S. that were medication abortions in 2017, one year after the FDA extended the approved use of abortion pills from the first seven weeks of pregnancy to 10. 
  • 63%. The percentage of abortions in the U.S. that were medication abortions in 2023, two years after the FDA allowed abortion pills to be prescribed via telehealth appointments. 
  • 0.4%. The chance of major health complications associated with medication abortions, according to a 2013 study in Contraception. 
  • 50%. The percentage of Americans who support requiring an in-person doctor visit to obtain abortion medication, according to a May 2024 Reuters/Ipsos poll.
  • 67%. The percentage of Republicans who support requiring an in-person doctor visit to obtain abortion medication. 
  • 37%. The percentage of Democrats who support requiring an in-person doctor visit to obtain abortion medication.

The extras.

  • One year ago today we had just asked if inflation was about to recede.
  • The most clicked link in Thursday’s newsletter was the link to our partners at DailyChatter.
  • Nothing to do with politics: A Massachusetts middle school just graduated 23 sets of twins.
  • Thursday’s survey: 868 readers answered our survey asking if the economy is heading in the right or wrong direction with 48% saying mostly the right direction. “With over a trillion in credit card debt, the numbers don’t show the whole picture in America. People are really struggling with no end in sight. Many can’t even pay mortgage and utilities AND minimum CC payment. Add 21-30% interest on those cards and this news means zero for many Americans,” one respondent said.

Have a nice day.

Mildred Kirschenbaum recently discovered a glitch in the check-in process at the airport — all she has to do to cut the line at security is enter her birthday at a self-service machine. She simply puts in her two-digit year and an escort arrives to see her through. Since Mildred was born in 1923 and the TSA interprets her birth year of “23” to mean she is an unaccompanied minor, Mildred has discovered that she and other centenarians are getting to cut the line. Good Morning America has the story


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Isaac Saul
I'm a politics reporter who grew up in Bucks County, PA — one of the most politically divided counties in America. I'm trying to fix the way we consume political news.