Even the Supreme Court seems sick of its abortion pills case

The lawsuit challenging mifepristone should have never been heard by any court.

The Supreme Court appeared listless, even bored, during Tuesday’s oral arguments in FDA v. Alliance for Hippocratic Medicine, the case asking the courts to ban the abortion drug mifepristone.

Their frustration with the Alliance case is understandable, since they’ve been dealing with it for nearly an entire year. Last April, after two lower courts issued decisions that would have effectively removed mifepristone from the market, the justices voted 7-2 to leave access to mifepristone intact while this case was being appealed.

On Tuesday, it appeared likely that the justices would break down along the exact same lines — with only Justices Clarence Thomas and Samuel Alito voting to halt access to the drug.

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Based on the justices questions on Tuesday, however, it seems unlikely that the Court will even reach the question of whether the FDA violated its legal obligations. That’s because the second question before the Court is whether any federal judge had jurisdiction to hear this case in the first place.

Nearly all of the justices’ questions on Tuesday focused on this threshold question — a strong sign that the Court is inclined to dismiss the case on jurisdictional grounds, without even getting into the question of whether the FDA violated the law.