The Supreme Court’s swift confrontation with abortion pills this week may reveal a lot about the three justices who were pivotal in overturning Roe v. Wade and the constitutional right to abortion.

Is it traditional conservatives who are skeptical of politically driven lawsuits that seek to change the law and public order?

Or are they so vehemently opposed to abortion that they will take a favorable view of a lawsuit that would overturn Food and Drug Administration rules and sharply restrict access to a drug that has been used by more than five million American women in two decades? would restrict?

A partial answer may follow soon. Judge Samuel A. Alito Jr., who oversees appeals from Texas and Louisiana, has issued an administrative stay to put the case on hold until Wednesday.

The nine justices must decide whether to block a lower court decision to completely revoke FDA approval of the drug, mifepristone, or impose new restrictions on its use, such as banning the drug from being shipped via the post or limiting its use to terminate pregnancies to seven weeks instead of the FDA’s current 10-week limit.

A majority of five votes is required to issue such an order. Assuming the three liberal justices vote to block the lower court ruling, that means the Biden administration will need the support of at least two conservative justices.

Chief Justice John G. Roberts Jr. is a strong possibility since he parted ways with his conservative colleagues last year and voted against reversing Roe, even though he favored maintaining Mississippi’s 15-week limit on abortion.

Alito, who wrote the 5-4 opinion in the Dobbs case that overturned Roe, has a long track record of opposing abortion rights, as does Judge Clarence Thomas.

Judges Amy Coney Barrett, Neil M. Gorsuch and Brett M. Kavanaugh are harder to predict.

All three voted to overturn Roe, a groundbreaking ruling that many conservatives have never accepted, in part because it began a public interest liberal lawsuit in 1970 that ultimately lifted abortion restrictions in 46 states.

Barrett, a former Notre Dame law professor, made it clear that she was morally against abortion, but told senators during her Senate confirmation that her personal views would not dictate her decisions in court.

In previous writings before he was a judge, Gorsuch questioned whether a fetus could be considered a person protected by the constitution. He, too, insisted during his confirmation that he would decide legal matters based on the law, not his personal beliefs.

Kavanaugh joined them in overthrowing Roe, writing in his concurring opinion that because the Constitution says nothing about abortion, decisions about it should not rest with judges.

“The nine members of this court will no longer rule on the basic legality of abortion before viability for all 330 million Americans,” he wrote. “That issue will be resolved by the people and their representatives in the democratic process in the states or Congress.”

That commitment is now being put to the test.

Not long after the judges struck down the nationwide right to abortion, a group of anti-abortion advocates, including doctors, set up an office in Amarillo, Texas. They filed a lawsuit challenging the legality of mifepristone, knowing it would go before U.S. District Judge Matthew Kacsmaryk, a Trump appointee with strong anti-abortion views.

As widely predicted, Kacsmaryk revoked the 2000 FDA approval of mifepristone, saying his nationwide order would take effect a week later.

That sent lawyers from the Ministry of Justice

hurry

to the 5th Circuit Court of Appeals in New Orleans to block Kacsmaryk’s decision.

A 2 to 1 majority agreed that it may be too late to question the safety of a drug used since 2000, but not too late to overturn the FDA’s 2016 decisions to ban the use of extend the pill to terminate pregnancies up to 10 weeks and allow sending it by post.

Attorney General Elizabeth Prelogar appealed to the Supreme Court, arguing that the Texas decisions broke decades of established law and practice. The abortion pills had remained legal under five presidents, Republicans and Democrats, and no judge had invalidated a drug’s FDA approval, she said.

She stressed how the decisions violate the legal principles espoused by conservatives.

Usually they are wary of granting status to litigants who simply disagree with a law or government policy and cannot demonstrate how they are or will be personally harmed as a result.

Of course, the anti-abortion doctors do not perform abortions or prescribe abortion pills. So how can they get hurt?

Kacsmaryk theorized that “side effects of chemical abortion drugs can overwhelm the medical system,” and as a result, an emergency room anti-abortion doctor may be forced to treat a patient in distress after taking the pills.

Justice Department lawyers called that far-fetched, given that mifepristone has been on the market for decades and has been shown to be safe in combination with a second drug, misoprostal.

Conservative judges have also consistently deferred to the FDA on drug safety issues.

Just two years ago, the court’s conservatives overturned an order from a Maryland judge that temporarily overturned the FDA’s requirement that women who want the abortion pill must first go to a hospital or medical clinic in person.

Due to the COVID-19 pandemic, the judge in Maryland said such visits posed a danger to the health of these patients and issued a nationwide injunction blocking the rule.

When the outgoing Trump administration appealed on behalf of the FDA, the Supreme Court issued a brief order overturning the district judge.

“My view is that courts owe a great deal of respect to those politically responsible entities with the background, competence and expertise to judge public health,” Roberts wrote in FDA v. American College of Obstetricians and Gynecologists.

Writing separately, Alito and Thomas criticized the judge for “taking it upon himself to override the FDA on a drug safety issue,” and for ignoring the court’s previous warnings “against judicial second-guessing by officials with public health responsibilities”.

Although the three liberal justices disagreed, the order spoke for the rest of the court.

Over the decades, the late Judge Antonin Scalia often railed that his liberal colleagues would falsify the law when an abortion case came before them.

“Does the deck look stacked? You bet,” he wrote in 2000 when he disagreed

the court

maintained a 2.5 meter buffer zone around people entering or leaving a medical clinic. He felt it clearly violated the freedom of speech of protesters on the sidewalk.

“Today’s decision is not an isolated distortion…but one of many aggressively pro-abortion novelties announced by the court in recent years.”

Now that the court has a solidly conservative majority, liberals are concerned about what might be called aggressive anti-abortion novelties.