WASHINGTON — The conservative legal movement has long had two key goals: to limit access to abortion and to restrict the authority of administrative agencies.
The decision last week by a federal judge in Texas invalidating the Food and Drug Administration’s approval 23 years ago of the abortion drug mifepristone checked both of those boxes. The ruling, if it stands, would not only thwart access to the pills, used in more than half of pregnancy terminations, but also undermine the F.D.A.’s authority to approve and regulate other drugs.
At first blush, all of that might seem to make the decision’s chances of surviving review by a Supreme Court dominated by conservative justices quite promising.
But legal scholars said on Monday that the poor quality, breathtaking sweep and unknown collateral consequences of the Texas decision might cause at least some of the Supreme Court’s conservative justices to wait for a case that would allow them to take more measured steps.
“If you’re a justice looking for a case in which to undermine the administrative state, this is not a particularly elegant one,” said Mary Ziegler, a law professor and historian at the University of California, Davis. “Everything about this case makes it an imperfect vehicle, except for the fact that it’s about abortion and the administrative state. This is boundary testing.”
Jonathan H. Adler, a law professor at Case Western Reserve University, said the new case, should it reach the Supreme Court, might meet a reception similar to that of the latest challenge to the Affordable Care Act. In 2021, by a vote of 7 to 2, the court said that the 18 Republican-led states and two individuals who brought the case had not suffered the sort of direct injury that gave them standing to sue.
Despite the conservative majority’s misgivings about the health care law, Professor Adler said, “when push came to shove and they were presented with a fundamentally deficient legal theory, only two justices were willing to give that legal theory the time of day.”
History may repeat itself in the Texas case, he said. “I view some of the administrative law aspects of this case to be similar,” he said, noting that there were significant threshold issues involving the plaintiffs’ standing to sue, whether they had exhausted other avenues for relief and whether they had taken too long to bring an action.
“Unless the court is willing to create abortion-specific rules for administrative law, it has to reject these claims,” Professor Adler said.
For decades, conservative justices complained that the Supreme Court’s abortion jurisprudence was destabilizing the rule of law, warping principles that applied in all sorts of cases.
“No legal rule or doctrine is safe from ad hoc nullification by this court when an occasion for its application arises in a case involving state regulation of abortion,” Justice Sandra Day O’Connor wrote in 1986.
“Roe and Casey have led to the distortion of many important but unrelated legal doctrines, and that effect provides further support for overruling those decisions,” Justice Samuel A. Alito Jr. wrote for the majority.
But a ruling upholding the Texas decision could lead to distortions of just the sort that Dobbs had vowed to end, Professor Ziegler said. “There’s a fun-house mirror effect to all of this,” she said.
The court could also leave itself open to charges of inconsistency and opportunism.
Indeed, even in the context of access to mifepristone, the Supreme Court has recently affirmed the authority of the F.D.A. In 2021, the court reinstated a requirement that women seeking to end their pregnancies using the abortion pill pick it up in person from a hospital or medical office.
A federal judge in Maryland had blocked the requirement in light of the coronavirus pandemic, overriding the agency’s determination. Chief Justice Roberts, the only member of the majority to set out his reasons, said that the trial judge should have deferred to the F.D.A.
“My view is that courts owe significant deference to the politically accountable entities with the ‘background, competence and expertise to assess public health,’” he wrote, quoting an earlier opinion. “In light of those considerations, I do not see a sufficient basis here for the district court to compel the F.D.A. to alter the regimen for medical abortion.”
In 2020, in an earlier encounter with the case, Justice Alito, joined by Justice Clarence Thomas, expressed incredulity that “a district court judge in Maryland took it upon himself to overrule the F.D.A. on a question of drug safety.” (The Biden administration later removed the requirement that the pill be dispensed in person.)
In a dissent in 2009, Justice Alito, joined by Chief Justice Roberts and Justice Antonin Scalia, praised the agency’s expertise, saying “the F.D.A. has the benefit of the long view.”
The majority had ruled that the agency’s approval of a drug had not displaced injured plaintiffs’ ability to sue under state law. Justice Alito disagreed. “Where the F.D.A. determines, in accordance with its statutory mandate, that a drug is on balance ‘safe,’” he wrote, the court’s precedents “prohibit any state from countermanding that determination.”
Rachel Rebouché, dean of Temple University Beasley School of Law, said the outcome of the case from Texas, if it reaches the Supreme Court, could turn on Chief Justice Roberts and Justice Brett M. Kavanaugh, who often hold the pivotal votes in close cases.
“Both of them expressed skepticism in Dobbs about just how far any decision should go,” she said. “To have federal court power used in service of undercutting the ability of an expert agency to apply its congressional authority might be too much.”
Professor Ziegler agreed that Justice Kavanaugh may well be in play.
“No matter how hostile he is to the administrative state and how hostile he is to abortion rights,” she said, “there are procedural hurdles that give someone like him an out if he just doesn’t want egg on his face after proclaiming that the court is getting out of the business of ruling on abortion rights.”
She added: “There are reasons for justices unsympathetic to abortion rights and the administrative decision to pause here. That doesn’t mean they will.”