The Supreme Court appeared hostile to the arguments of right-wing doctors seeking a nationwide ban of the abortion drug mifepristone during Tuesday, but MSNBC legal expert Dahlia Lithwick doesn't think access to this medication is safe — even if its opponents end up losing the case.
That's because, she argued, some of the justices appeared to be entertaining the idea that they'd rule against mifepristone access if a different set of plaintiffs using a different legal theory brought the case to them.
"I want to make sure I understand your expert analysis," said anchor Nicolle Wallace. "It is not that the court softened its view on abortion. It is that they questioned the specifics of this case belonging before the court. It doesn't necessarily mean mifepristone is safe forever ... tell me if I have that right?"
"No, that is exactly right," confirmed Lithwick. "And I think we heard spatterings of the justices saying, come back when you have a plaintiff as opposed to one of these kind of grumpy doctors and we might entertain this. Come back when you've got it tethered to the Comstock Act and we might entertain it. Come back when things are a little more settled, when Donald Trump is elected and the Comstock Act becomes the law of land, and we might entertain it."
The Comstock Act is an old law from 1873 that prohibits the use of the U.S. Postal Service to send abortion-related and "obscene" materials. It has gone unenforced for generations, but some of the Republican-appointed justices appeared receptive to the idea it could be used to effectively prohibit certain forms of abortion nationwide.
"I didn't see this as the closing of the gates on a mifepristone challenge," Lithwick added. "I saw it as the opening of a lot of really scary Overton Windows for the future."
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