The Supreme Court Just Laid Out a Road Map for Trump to Ban Abortion Nationwide (2024)

In FDA v. Alliance for Hippocratic Medicine, a unanimous Supreme Court rejected a challenge to the agency’s approval of mifepristone, a pill used in more than 60 percent of abortions, because the plaintiffs did not have standing to sue. Rejection of their claims is hardly evidence that the court is keeping its promise, in overturning Roe v. Wade, to leave the abortion question to the people and their elected representatives. To the contrary: The court’s decision in Alliance offers a road map for conservatives who want to challenge mifepristone access in politics and through the courts.

There were problems with AHM’s case for standing from the beginning. The doctors who sued the Food and Drug Administration relied on a mixture of speculation and self-inflicted harms—perhaps the most ludicrous argument was that the plaintiffs had standing because they diverted resources to pay for their suit against mifepristone. The cost of suing, they argued, proved their standing to sue. The court’s decision to reject such claims is welcome, but it’s hardly an assurance that the justices will stay out of the abortion debate.

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 19^th-century Comstock Act as a national ban on abortion, and employ conscience objections to block access to health care, as a prominent conservative commentator points out.

Critically, in rejecting the plaintiffs’ standing claim, Justice Brett Kavanaugh’s opinion for the court discusses federal conscience protections more expansively than SCOTUS has before. Health care refusals can harm other citizens in ways that traditional conscience objections involving religious observance or dress do not. These conscience claims can injure, for example, if an emergency room doctor—or attendant—objects: “I do not want to care for this patient because she might have had an abortion.” Ominously, Alliance speaks of complicity claims of this kind as if they have no limits.

Before President Donald Trump refashioned it, the Supreme Court recognized conscience protections but simultaneously affirmed the importance of protecting other citizens from material and dignitary harm. So, for example, when religious employers objected to the contraceptive mandate of the Affordable Care Act, the court sought to “accommodate … religious exercise while at the same time ensuring that women … receive full and equal coverage, including contraceptive coverage.” Similarly, the Biden administration has tried to balance patients’ right to access health care with the rights of providers to object.

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. “A doctor,” Kavanaugh writes, “may simply refuse.” The court emphasizes, “Strong protection for conscience remains true even in a so-called healthcare desert, where other doctors are not readily available.”

Alliance does suggest that the anti-abortion movement has alternative avenues in politics. If anything, the court appears to contemplate strategies focused on the national government as well as state and local governments. “Citizens and doctors who object to what the law allows others to do,” Kavanaugh writes, “may always take their concerns to the Executive and Legislative Branches and seek greater regulatory or legislative restrictions on certain activities.” In these passages, the court seems to anticipate the possibility of a Trump administration that could radically limit access to abortion. The Heritage Foundation and other conservative groups have announced plans for the next Republican administration in Project 2025, which outlines comprehensive strategies, of the kind Kavanaugh seems to reference, for undermining access to mifepristone—circumventing altogether the need for new, unpopular, and unlikely-to-pass federal legislation.

A section of Project 2025 written by Roger Severino, who created and led a division of the Health and Human Services Department devoted to conscience enforcement under Trump, contemplates a range of strategies for restricting abortion and LGBTQ+ rights, including reversing HHS authorization for mifepristone. The proposal also details several new strategies, including banning abortion travel funding in the name of conscience, denying Medicaid funding to states deemed not to enforce conscience protections strongly enough, and reinstituting Trump-era conscience regulations on contraception, abortion, gender-affirming care, and other matters.

The best-known threat—plans to reinvent the Comstock Act, a 150-year-old postal obscenity statute, as a nationwide abortion ban—can hardly be written off either. The plaintiffs in Alliance had attacked FDA authorization of telehealth for mifepristone, arguing that Comstock made it illegal to mail items used for abortion, including pills. Conservatives, including former Trump administration officials who drafted Project 2025, have already taken up Kavanaugh’s invitation and detailed plans for a potential Trump Department of Justice to enforce the Comstock Act against drug manufacturers and providers.

To the extent Alliance suggests that the federal courts alone won’t resolve conflicts about abortion, 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.

The bottom line is that a decision rejecting an unusually weak standing claim can tell us only so much about what the court has planned for abortion. What is clear is that in the aftermath of the destruction of abortion rights, it is far from inevitable that the voters in each state will get to reach their own conclusions about reproductive health, and that fact is not lost on the conservative justices of the Supreme Court.

This is part ofOpinionpalooza, Slate’s coverage of the major decisions from the Supreme Court this June. AlongsideAmicus, we kicked things off this year by explainingHow Originalism Ate the Law. The best way to support our work is by joiningSlate Plus. (If you are already a member, consider a donationormerch!)