Legal analysts have expressed surprise after Supreme Court Associate Justice Samuel Alito sided with the eight other justices in a unanimous decision in a high-profile case involving a widely used abortion medication.
The nation’s highest court decided 9-0 that the challengers to mifepristone did not have the legal standing to sue the Food and Drug Administration (FDA), with conservative Justice Brett Kavanaugh writing the decision.
Alito, a senior member of the Court’s conservative wing, appeared to stun some legal analysts by joining his colleagues in their decision in FDA v. Alliance for Hippocratic Medicine. That case was consolidated with Danco Laboratories, L.L.C. v. Alliance for Hippocratic Medicine. Danco produces mifepristone.
The justices’ move preserves access to the mifepristone pill, which is used in nearly two-thirds of all abortions in the United States.
The Court’s six conservative joined the three liberals in a decision that contrasted sharply with 2022’s landmark ruling in Dobbs v. Jackson Women’s Health Organization where the conservative majority found that the U.S. Constitution did not guarantee a right to abortion.
Legal analyst and former federal prosecutor Joyce Vance called Alito’s decision a “remarkable shift.” Writing on Substack, Vance appeared to link Alito’s decision to ongoing ethical questions surrounding the Court.
“At oral argument in this case, Justice Alito seemed well along to affirming the Fifth Circuit and finding that the plaintiffs’ had standing. But after recent focus on his and other ethical issues on the Court, he apparently backed off,” Vance wrote.
“The test for standing clearly leads to the result in this case, the one that a 9-0 Court reached—no standing. That hasn’t stopped Justice Alito from engaging in results-oriented judging in cases with tenuous standing in the past, but it did here,” Vance said.
Newsweek reached out to the Supreme Court via email for comment.
Supreme Court Justice Samuel Alito’s official portrait taken on October 7, 2022. Alito joined a unanimous decision in a high-profile abortion medication case on Thursday.
Alex Wong/Getty Images
Other legal analysts also appeared surprised that Alito joined his colleagues in making a unanimous decision.
Steve Vladek, Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law, wrote on X, formerly Twitter: “It’s not (at all) surprising that this is where the Court ended up.”
“It’s a bit surprising that Justices Thomas and Alito were in the majority given that, in April 2023, they voted to leave the Fifth Circuit’s ruling intact when the FDA and Danco asked #SCOTUS for a stay,” Vladeck added.
Elie Mystal, justice correspondent for The Nation, praised U.S. Solicitor General Elizabeth Prelogar while criticizing Alito.
“I would like to once again heap praise on Solicitor General Elizabeth Prelogar… who expertly argued the mifepristone case and, somehow, avoided climbing up on the bench and garroting Sam Alito with an umbilical cord after his umpteenth stupid hypothetical,” Mystal wrote on X.
Despite the justice’s questioning of Prelogar, he did not find that the mifepristone challengers had standing.
Conservative lawyer and prominent Trump critic George Conway took a different view, however. Writing about the Court’s decision on X, he said: “Another result-oriented decision from a compromised, illegitimate court, right, my liberal friends?”
Some critics have recently called for Alito to be impeached following a ProPublica report last year that Alito had accepted gifts, including a vacation, from the conservative billionaire Paul Singer which he did not include in his financial disclosures.
The justice has also been criticized after reports that he flew a Christian nationalist flag and an upside-down U.S. flag outside his homes in Virginia and New Jersey. Alito said his wife had raised the inverted flag, which became associated with former President Donald Trump’s claim that the 2020 election was rigged, during a dispute with their neighbors over an anti-Trump lawn sign.
Associate Justice Clarence Thomas also wrote a concurring opinion in the case. Thomas is the most senior conservative member of the Court and has faced renewed calls to resign after the Senate Judiciary Committee said on Thursday they had uncovered three more previously undisclosed luxury trips paid for by billionaire Republican Party donor Harlan Crow that Thomas took.
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