Conservatives Are Getting Comfortable Talking Openly About a National Abortion Ban

[In It to Win It]

Conservatives Are Getting Comfortable Talking Openly About a National Abortion Ban

After this week’s oral argument, few court watchers believe the Supreme Court is now ready to limit the Food and Drug Administration’s authority to approve mifepristone, a drug used in more than half of all abortions, as opponents of abortion sought. At oral argument in FDA v. Alliance for Hippocratic Medicine, it did not appear that the plaintiff doctors persuaded the court that the law inflicted injuries that would give them standing to sue. The reason for the justices’ skepticism is not hard to find. The doctors built their case on a mountain of remote possibilities. Patients might suffer complications from mifepristone—a drug with an impressively low complication rate—and might seek treatment at emergency rooms, where the plaintiffs may happen to practice, when the plaintiffs might not be able to find another physician willing to intervene. And all of that might mean that the plaintiffs would have to act in violation of their conscience. But then again, it might not. That’s why this case seems dead on arrival: The justices seemed unwilling to engage in the sort of rank speculation the plaintiffs have in mind. If this chain of hypotheticals is enough, anyone can bring a constitutional challenge to any drug approval or any law.

But the case was also a vehicle for advancing ever more expansive conscience-based arguments that have become common currency among Christian conservatives—claims of the kind we have seen in well-known cases like the 2014 Hobby Lobby decision recognizing conscience objections to the contraceptive mandate of the Affordable Care Act or even last year’s ruling in 303 Creative v. Elenis that allowed a conservative Christian graphic designer to refuse to make custom websites for same-sex weddings.

Today, those with conscience-based objections seek more than to pray or dress in conformity with religious belief. They object to laws providing Americans access to health care or freedom from discrimination. Compliance with these laws, they claim, would make the objector complicit in the assertedly sinful conduct of others.

Objectors bringing this new generation of complicity-based conscience claims invite courts to deny other Americans the protections of the law. In the FDA case, the plaintiffs do not even seek an exemption from the law; through an expansive standing claim, the doctors claim the only way the court could protect their conscience is to strike down FDA approvals providing all Americans access to medication abortion. Simply having mifepristone on the market, they argue, risks making them complicit in abortion.