Stacking the Courts against Mifepristone

a sign that reads "We will save us" over and over again with a hand that holds a paper that says "Abortion Pills"
A protest for abortion rights in New York City on June 24, 2022 (Credit: Elvert Barnes/Flickr.com)
Zane McNeill
February 12, 2025

On June 13, 2024, the Supreme Court rejected an attempt by anti-abortion groups represented by the Alliance Defending Freedom (ADF) to roll back Food and Drug Administration (FDA) regulations allowing people greater access to the medication mifepristone in Alliance for Hippocratic Medicine v. FDA.[1] Notably, the decision did not touch on the merits of the case—whether the FDA was legally authorized to relax restrictions on mifepristone. Yet it may have opened the door to a future case to successfully make that challenge. In his opinion from a unanimous Court, “[Justice] Kavanaugh just laid out a roadmap for the ADF to reach this point again—say, for instance, not in an election year,” Gillian Branstetter, Communications Strategist at the ACLU’s Women’s Rights Project and LGBTQ & HIV Project, said on X/Twitter.[2] While Kavanaugh wrote in the majority opinion that “a plaintiff ’s desire to make a drug less available for others does not establish standing to sue,” he went on to explain what could constitute the needed causation, thus establishing a way for potential future plaintiffs to challenge the availability of mifepristone.[3]

To understand why the judiciary’s holdings have increasingly reflected the policies espoused by conservative think tanks, we can look at the mifepristone case as one in a trend of forum shopping and dark money in the courts. The 2024 abortion pill case is a test by far-right groups seeing what far-right legal arguments the courts—from local courts to appellate courts, to the Supreme Court—will adopt. These seemingly small and large wins (and advisements, as in the case of Kavanaugh’s opinion) create a foundation for potential dissenting opinions to become majority law and policy in an increasingly conservative legal landscape. It is well known that the Alliance for Hippocratic Medicine was the product of forum shopping, dark money, and blatant corruption. Yet the case also illustrates how the conservative movement has been working behind the scenes for years to change the judicial landscape of the courts with the goal of restricting our civil liberties. 

Weaponizing the Courts

When the decision on Alliance was announced, some media groups like The Washington Post were quick to publish misleading headlines saying that the unanimous decision was a “a win for abortion rights,” and others, like America: The Jesuit Review, went so far as to claim that the Supreme Court dismissed the case.[4] Advocates like the ACLU were more cautious, pointing out that the holding was procedural.[5] In other words, the decision itself was made entirely on the ability for the plaintiffs to bring the case, not on the merits of their claims.[6] Therefore, while the Supreme Court held that the specific plaintiffs in this case did not have standing to challenge the availability of mifepristone, the Court did not rule on whether the FDA lawfully relaxed the restrictions of the medication in 2016 and 2021.[7]

Abortion rights groups have said that the case being reviewed by the Supreme Court illustrates how the courts have been weaponized by conservatives who want to erode reproductive rights and other civil liberties.[8] In regards to attacks on gender identity and sexual orientation rights, as an example, while the Biden Administration has attempted to use administrative rulemaking to increase protections for LGBTQ students, prevent healthcare discrimination based on gender and sexual orientation, protect abortion healthcare information from investigation, and protect LGBTQ people from workplace harassment, a group of conservative states have rallied together to challenge these rules.[9] Right-wing actors are banking on a decades-long campaign eroding judicial neutrality to work in their favor—and it seems like they’re winning right now.

Recent Republican appointees successfully halted administrative rules that would have increased protections for transgender students,[10] ended judicial deference to administrative agencies,[11] and greatly expanded presidential immunity.[12] The most recent attacks on reproductive rights and LGBTQ rights[13] by the far-right in the U.S. are part of a concerted effort to undermine all civil liberties from bodily autonomy to voting rights to anti-discrimination law.[14]

On Judges and Geographies

In many ways, this mifepristone case was constructed for one judge rather than the U.S. Supreme Court: Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas, renowned as one of the most conservative judges in the country.[15] Before being appointed to the bench by President Trump in 2017, Kacsmaryk was deputy general counsel at the First Liberty Institute (FLI), a Christian conservative legal organization. During his tenure, he represented several religious institutions that opposed the Affordable Care Act’s (ACA) contraceptive-coverage policy[16] and said that legal wins that erode people’s right to contraception would “protect innocent life from conception to natural death” and “defend unborn human life.”[17]

Recent reporting has shown that political sympathies have led to an influx of cases being filed in his district, in a practice called “forum-shopping,” also known as “judge-shopping.”[18]  “[‘Forum shopping’ is] a reference to litigants seeking to lodge their claims in courts inclined to side with their position,” Lars Noah, a Professor of Law at the University of Florida, said. He added, “In the past, it had more to do with looking for places following more favorable local procedural rules or substantive doctrine, but increasingly it has to do with personalities on the bench.” One famous example is the Eastern District of Texas, which developed a reputation as a patent lawsuit haven due to its plaintiff-friendly judgments. That trend became so pronounced that the Supreme Court intervened with its 2017 decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, limiting where such cases could be filed to reduce forum-shopping.

Indeed, Alliance for Hippocratic Medicine, the anti-abortion organization challenging the FDA’s endorsement of mifepristone, is based in Tennessee. However, in August 2022, the group strategically incorporated a branch in Amarillo, Texas to bring the lawsuit in Kacsmaryk’s district. “Existing anti-abortion groups used a front group—created just months before—to file the mifepristone suit in Amarillo, Texas, a strategic choice ensuring the case landed before …  Kacsmaryk,” said Alyssa Bowen, Senior Researcher and Managing Editor at the watchdog group True North Research. In other words, of the 94 U.S. District Courts, the case would find its way to Kacsmaryk.

That strategy worked. On April 7, 2023, Kacsmaryk ruled in favor of the plaintiffs in Alliance for Hippocratic Medicine v. FDA, effectively revoking the Food and Drug Administration’s (FDA) approval of the abortion pill mifepristone. The lawsuit, argued by the ADF, claimed that the presumed dead Comstock Act of 1873 prohibited the access to and mailing of the abortion pill. [19] The Guttmacher Institute found that accessing the abortion pill by mail accounts for 63 percent of abortions in the United States.[20] The Comstock Act was crafted to prohibit the dissemination of obscene literature and materials, including birth control, through the mail “to prevent the mails from being used to corrupt the public morals.” The Far Right are increasingly attempting to revive the Comstock Act, and the Heritage Foundation released a legal memorandum on the Act.[21]

[22] While the Supreme Court has ruled that the plaintiffs in the case did not have standing to bring the lawsuit at all, Erin Hawley, an ADF attorney, has said that she expects states to continue this litigation by raising a different standing argument.[23] Kacsmaryk could allow conservative states who already had been allowed to intervene in the case at the district level, such as Idaho, Kansas, and Missouri, to continue the litigation.

Stacked Judiciary

Kacsmaryk’s ascendency is part of a much larger campaign to appoint conservative judges to the bench. Trump’s three Supreme Court appointees, and 80 percent of his appointments to the federal Courts of Appeals, were affiliated with the Federalist Society—a conservative legal organization.[24] “[The Federalist Society] has played an outsized role in refashioning the judiciary, and it didn’t just focus on the big prize—i.e., SCOTUS—but in the lower federal courts as well as some state high courts,” Noah said. The Federalist Society is a conservative legal organization that is, in their words, “dedicated to reforming the current legal order.”[25]

Trump worked closely with Majority Leader Mitch McConnell and other Senate Republicans to appoint more than 200 judges to the federal bench, including nearly as many federal appeals court judges in one term compared to President Barack Obama’s two terms.[26] Scholars and activists have said that his appointments drastically altered the judicial landscape[27] so much so that, in 2021, more than a quarter of active federal judges were Trump appointees.[28]

Kelly Shackelford, Founder, President, CEO, chief counsel of FLI, and Kacsmaryk’s former boss, saw Kacsmaryk’s nomination as a win in a multi-year battle. In a Council for National Policy presentation in February 2020, he said, “Some of us literally opened a whole operation on judicial nominations and vetting. We poured millions of dollars into this, to make sure the President has good information, he picks the best judges.”[29]

The millions of dollars behind these judicial recommendations are dark money, e.g., untraceable funds funneled through nonprofit organizations exempt from donor disclosure requirements. In an interview, Bowen noted that dark money allows far-right organizations to take control of the judiciary and other institutions from within: through public messaging, mentorship, judgeships, and judicial advocacy such as filing amicus briefs. She stated, “Dark money groups work to influence public policy while keeping their donors and their donors’ agendas secret from the public.” According to Citizens for Responsibility and Ethics in Washington (CREW), the Federalist Society entered the 2022 midterms with more than $202 million in available funds.[30] [31] Additionally, in May 2020, the Marble Freedom Trust, an organization linked to Leonard Leo (co-chair of the Federalist Society), was established and received a substantial $1.6 billion donation from an electronics manufacturing magnate.

The financial support of dark money groups, coupled with the subsequent sway it provided the Federalist Society and other related organizations, empowered Trump to completely overhaul the Fifth Circuit, transforming it into the most conservative circuit in the nation.[32]  According to the website Accountable.US, recent rulings by the Fifth Circuit on reproductive rights, voting rights, and ghost guns cases highlight the unmistakable influence of the Federalist Society within this court.[33] Therefore, another factor contributing to the popularity of Kacsmaryk’s district among conservative legal advocacy groups is the fact that appeals in his district funnel up to the Fifth Circuit.

Kacsmaryk’s—and other Federalist Society judges’—place in the courts renders a significant impact. In the mifepristone case, three days after Kacsmaryk’s ruling in Alliance for Hippocratic Medicine v. FDA on April 7, 2023, the Department of Justice (DOJ) appealed the case to the Fifth Circuit, arguing that the decision was “extraordinary and unprecedented.”[34] If Kacsmaryk’s order restricting access to the abortion pill was allowed to stand, the medication could have faced limitations as early as the end of that week.[35] The DOJ also filed an emergency application with the Supreme Court, and the Supreme Court allowed mifepristone to stay on the market while the case proceeded at the Fifth Circuit Court.[36] In August, the Fifth Circuit held that the full extent of Kacsmaryk’s ruling was partially barred by the statute of limitations and partially vacated his holding.[37] This means that the Fifth Circuit vacated Kacsmaryk’s revocation of the medication, but reversed actions by the FDA which expanded access to the medication, thereby reimposing pre-2016 limitations on the medication that the FDA had since removed.[38] Put succinctly, the Fifth Circuit decision would have made it more difficult for people to access the medication. These restrictions, which prohibit prescribing the abortion pill via telemedicine and dispensing it by mail, would significantly limit access to the medication[39]

Despite the Court holding that plaintiff did not have adequate standing to bring this case, which effectively allows continued access to mifepristone, there is reason to believe that a future case making similar arguments on the merits may experience a much more receptive court.

Who Is Shaping the Courts: Funding and Think Tanks

Investigations show that many of the conservative Supreme Court justices look to conservative groups when determining how to rule on certain cases.[40] In evaluating potential future court rulings on similar cases brought by plaintiffs with standing, it’s instructive to consider the legal analysis presented by Thomas Jipping, Senior Legal Fellow at The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies. Jipping’s commentary focuses on whether the FDA adhered to its standard regulatory procedures in lawfully approving mifepristone. He notes that federal law prohibits introducing into interstate commerce any prescription drug that the FDA has not approved as “safe and effective” for its “proposed indication and under the proposed conditions of use.” [41]Importantly, Jipping attempts to shift the legal question in this case from the erosion of reproductive rights to a question of “whether agencies that make decisions with a potentially enormous impact on Americans’ lives follow the law, especially when political tensions threaten to interfere.”[42] This reading not only aims to make the case more palpable to the public, but also of more interest to the courts, because the current Supreme Court appears to exhibit hostility not only towards reproductive rights, but also demonstrates contempt for the administrative state. On June 28, the Supreme Court abandoned deference in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., a fundamental doctrine in administrative law that mandated courts to defer to an agency’s reasonable interpretation of an ambiguous statute.[43] Jipping’s reframing of the mifepristone case from reproductive rights to an administrative law question may make it easier for the court to de-politicize a future ruling. As a result, the courts could restrict the medication or completely revoke the FDA’s market approval of it.

Trends among Federalist Society member judges are fueled by the framework of “originalism,” a strict legal interpretation of the Constitution that seeks to understand it as it was purportedly “originally” intended at the time of its drafting.[44] Other amicus briefs in this case on behalf of banning mifepristone, such as a brief representing 147 current members of Congress, filed by Americans United for Life,[45] and a brief by 21 states that have restricted abortion, rely on similar conservative, legal arguments that challenge the authority of the FDA based on the revitalization of the Comstock Act.[46] “The anti-abortion movement is trying to resurrect the Comstock Act. They are saying it doesn’t matter that it was passed in 1873. It doesn’t matter that those federal courts interpreted it that way and everyone…who’s alive today has lived under that interpretation for a century,” David Cohen, law professor at Drexel University said. In the brief by 21 anti-abortion states, the states argue that “the FDA’s actions defy federal criminal law,” because of the Comstock Act and because “those actions are at war with the law, the FDA cannot claim a public interest in enforcing them.” Even more concerning is that the states who argue that the Comstock Act not only bans the mailing of abortion pills, will also ban “any drug, medicine, article, or thing designed, adapted, or intended for producing abortion.” [47]

While the outcome of the Supreme Court will protect needed access to mifepristone for now, Justices Thomas and Alito also signaled their interest in future cases reviving the Comstock Act.[48] Analysts reported that this case will likely create openings for future challenges to reproductive rights that the court will be more receptive to.

While Noah said that far-right groups are partially balanced by advocacy organizations like the ACLU, the NAACP, Planned Parenthood, Public Citizen, and other groups that defend civil liberties, he also warned that “the Right Wing has become more effective than in the past (partly, of course, because those groups now get to preach to a more receptive audience on the bench).” These far-right legal groups’ success in changing the judicial landscape is directly behind the reversal of Roe v. Wade in 2022 and the subsequent endangerment of other substantive due process rights that relied on the constitutional right to privacy, the right to purchase and use contraception, the right of same-sex intimacy and marriage, and the right to marry across racial identities.[49] Additionally, many of the same organizations that lobbied to reverse Roe, such as the ADF, the Family Policy Alliance, and the Heritage Foundation, are part of a coalition currently lobbying for gender-affirming care bans and other anti-LGBTQ legislation in state legislatures across the country.[50] Together, these cases (and others) point to ever-growing efforts of the Right to restrict gender identity and sexual orientation rights.[51]

Project 2025 and the Courts

In April 2023, the Heritage Foundation published Mandate for Leadership: The Conservative Promise, commonly known as Project 2025—a playbook of actions they recommend the next Republican President take during their first 180 days of leadership.[52]  “Project 2025 provides a unique window into the terrifyingly regressive society that theocratic authoritarians want to impose on our country and world. Its partners are a veritable who’s who of special interest groups bent on extreme policies that attack our freedoms,” Bowen said. A recent Media Matters report on Project 2025 said that the policies recommended “would severely inhibit the federal government’s protections around reproductive rights, LGBTQ and civil rights, and immigration, as well as its climate change efforts.”[53] With the aspiration of creating a dystopian future, Leonard Leo’s network has directed $50.7 million towards the organizations advising the 2025 Presidential Transition Project under its Project 2025 advisory board.[54]

One of the policies included in Project 2025 is, unsurprisingly, the enforcement of the Comstock Act by the Department of Justice.[55] The report states: “Following the Supreme Court’s decision in Dobbs, there is now no federal prohibition on the enforcement of this statute. The Department of Justice in the next conservative Administration should therefore announce its intent to enforce federal law against providers and distributors of such pills.” Not only would this policy prevent clinicians from mailing abortion pills to patients, but it would also prohibit pill manufacturers Danco and GenBioPro from mailing mifepristone to clinicians and pharmacies, effectively establishing a nationwide ban on mifepristone.[56] Moreover, a strict interpretation of the Comstock Act could impact the mailing of all materials utilized in abortion procedures, encompassing non-pill abortion methods.[57] “The anti-abortion movement knows this…they have said that the Comstock Act amounts to basically a de facto national abortion ban,” Cohen said. “And they have in many different fora said that that’s what they want to do if Trump wins the presidency.”

Despite forum shopping, judicial appointments, and dark money behind the Alliance for Hippocratic Medicine v. FDA case, their efforts did not lead to an outright win by conservative legal groups. Yet the mifepristone case still exemplifies an altering of the legal landscape by these groups to undermine judicial neutrality. This case, among others like Chevron, has successfully normalized far-right legal arguments crafted by these groups which will likely be, at least partially, embraced by the Court in its holding on the case. The mifepristone case has opened the door for future legal attacks on reproductive rights predicated on a revival of the Comstock Act in tandem with other erosions of LGBTQ and civil rights as promoted by Project 2025.

“[T]here are a lot of big-name Republican politicians and lawyers who are talking about the Comstock Act in a way that everyone should be concerned about,” Cohen said. “To me, it’s the number one issue about abortion over the next ten months. And it’s really scary to think what they could try to do.”

Endnotes

  1. Food and Drug Administration et al v. Alliance for Hippocratic Medicine et al, https://www.supremecourt.gov/opinions/23pdf/23-235_n7ip.pdf
    2.  
  2. Gillian Branstetter, Tweet (no longer available), https://x.com/GBBranstetter/status/1801294121576915172
    3.  
  3. FDA v. Alliance. Specifically, Kavanaugh explains that a plaintiff may have standing if they are involved in prescribing, manufacturing, selling, or advertising mifepristone, sponsor a competing drug, experience harm to their property or its value due to the FDA’s actions, or use mifepristone themselves.
    4.  
  4. Susan Rinkunas, “this Washington Post push alert is misleading! The Supreme Court didn’t weigh in on restricting access to the abortion pill because these particular plaintiffs couldn’t legally sue over it. The threat absolutely remains,” X, June 13, 2024, https://x.com/SusanRinkunas/status/1801261533080522871; Kate Scanlon, “Supreme Court Unanimously Dismisses Challenge to Abortion Drug Mifepristone,” America Magazine, June 13, 2024, https://www.americamagazine.org/politics-society/2024/06/13/supreme-court-dismisses-challenge-abortion-drug-unanimous-ruling-248145.
    5.  
  5. Julia Kaye, “The Supreme Court rejected an attack on medication abortion, but the fight is far from over,” ACLU, June 18, 2024, https://www.aclu.org/news/reproductive-freedom/the-supreme-court-rejected-an-attack-on-medication-abortion-but-the-fight-is-far-from-over.
  6. Jennifer Dalven, “Supreme Court Turns Away Attack on Medication Abortion Care,”ACLU, June 12, 2024, https://www.aclu.org/press-releases/supreme-court-turns-away-attack-on-medication-abortion-care#:~:text=The%20American%20Civil%20Liberties%20Union,want%20to%20see%20it%20banned; Amy Howe, “Supreme Court Preserves Access to Abortion Pill,” SCOTUSblog, June 13, 2024, https://www.scotusblog.com/2024/06/supreme-court-preserves-access-to-abortion-pill/.
    7.  
  7. FDA v. Alliance.
  8. “Nationwide Threat to Medication Abortion,” Center for Reproductive Rights, May 28, 2024, https://reproductiverights.org/fda-lawsuit-threatens-medication-abortion-nationwide/; Planned Parenthood, “Reclaim Our Courts: Why the Courts Still Matter,” Planned Parenthood, June 23, 2023, https://www.plannedparenthood.org/blog/reclaim-our-courts-why-the-courts-still-matter.
    9.  
  9. Bruce Schreiner, “Federal Judge Blocks Biden’s New Title IX Rule Expanding Protections for LGBTQ+ Students,” PBS, June 17, 2024, https://www.pbs.org/newshour/nation/federal-judge-blocks-bidens-new-title-ix-rule-expanding-protections-for-lgbtq-students; Jim Saunders, “Florida Lawsuit Claims New HHS Rule Clashes with State Law on Gender-Affirming Care,” Health News Florida, May 8, 2024, https://health.wusf.usf.edu/health-news-florida/2024-05-08/florida-lawsuit-claims-new-hhs-rule-clashes-with-state-law-on-gender-affirming-care; Joseph Choi, “White House Moves to Protect Patient Abortion Records,” The Hill, April 22, 2024, https://thehill.com/policy/healthcare/4611566-white-house-moves-to-protect-patient-abortion-records/; Zane McNeill, “New Federal Rules Protect LGBTQ People From Misgendering, Bathroom Bans,” Truthout, May 2, 2024, https://truthout.org/articles/new-federal-rules-protect-lgbtq-people-from-misgendering-bathroom-bans/; Collin Binkley, “Republican states challenge New Title IX rules protecting LGBTQ+ students,” PBS, April 30, 2024, https://www.pbs.org/newshour/politics/republican-states-challenge-new-title-ix-rules-protecting-lgbtq-students.
    10.  
  10. Nick Robertson, “Federal Judge Blocks Biden’s Title IX Transgender Protections,” The Hill, June 11, 2024, https://thehill.com/regulation/court-battles/4716699-federal-judge-blocks-joe-biden-title-ix-transgender-protections/.
  11. Sharon Zhang, “SCOTUS Overturns ‘Chevron’ Deference, Sparking Massive Transfer of Power to Courts,” Truthout, June 28, 2024, https://truthout.org/articles/scotus-overturns-chevron-deference-sparking-massive-transfer-of-power-to-courts/.
  12. Marjorie Cohn, “Presidential Immunity Ruling and Project 2025 Pave Way for Trump’s Fascist State,” Truthout, July 18, 2024, https://truthout.org/articles/presidential-immunity-ruling-and-project-2025-pave-way-for-trumps-fascist-state/.
  13. Zane McNeill, “The Supreme Court Ruling the Right Is Using to Eradicate Transgender People,” The New Republic, February 14, 2024, https://newrepublic.com/article/178681/dobbs-ruling-war-trans-community.
    14.  
  14. “The Trump and Biden Memos,” American Civil Liberties Union, July 19, 2024, https://www.aclu.org/campaigns-initiatives/the-trump-and-biden-memos.
    15.  
  15. “Breaking: Alliance for Hippocratic Medicine v. FDA Supreme Court Case Decided,” Reproductive Freedom for All, June 13, 2024, https://reproductivefreedomforall.org/resources/alliance-for-hippocratic-medicine-v-fda-court-case/.
    16.  
  16. Mark Wingfield, “The Texas Conservative Pipeline Put a Judge on the Federal Bench Who Will Singlehandedly Determine the Fate of Medication Abortion in America,” Baptist News Global, February 27, 2023, https://baptistnews.com/article/the-texas-conservative-pipeline-put-a-judge-on-the-federal-bench-who-will-singlehandedly-determine-the-fate-of-medication-abortion-in-america/.
    17.  
  17. “Matthew Kacsmaryk,” NARAL Pro-Choice America, December 4, 2017, https://reproductivefreedomforall.org/wp-content/uploads/2017/12/Matthew-Kacsmaryk_NARAL.pdf.
  18. Kimberly Jade Norwood, “Shopping for a Venue: The Need for More Limits on Choice,” 50U. Miami L. Rev. 267 (1996), http://repository.law.miami.edu/umlr/vol50/iss2/3. Forum-shopping is when a party attempts to have a particular court or jurisdiction hear his case in the hopes of receiving the most favorable judgment or verdict. It includes liberal venue provisions, removal of cases by defendants from state to federal court, joining (or not joining) parties to litigation, selecting juries as a whole, as well as individual jurors, and shopping for judges. Kacsmaryk’s district has become a favorite for conversative groups.
    19.  
  19. “Heritage Experts: Court Ruling Rightly Checks Federal Push of Dangerous Abortion Pills,” The Heritage Foundation, April 7, 2023, https://www.heritage.org/press/heritage-experts-court-ruling-rightly-checks-federal-push-dangerous-abortion-pills.
  20. Rachel K. Jones and Amy Friedrich-Karnik, “Medication Abortion Accounted for 63% of All US Abortions in 2023-an Increase from 53% in 2020,” Guttmacher Institute, March 2024, https://www.guttmacher.org/2024/03/medication-abortion-accounted-63-all-us-abortions-2023-increase-53-2020.
    21.  
  21. Melissa Gira Grant, “Conservatives Are Turning to a 150-Year-Old Obscenity Law to Outlaw Abortion,” The New Republic, April 12, 2023, https://newrepublic.com/article/171823/kacsmaryk-mifepristone-abortion-comstock-act.
    22.  
  22. John Fritze and Tierney Sneed, “Supreme Court’s Abortion Pill Ruling Puts New Focus on Conservative Trump Judge in Texas,” CNN, June 15, 2024, https://www.cnn.com/2024/06/15/politics/abortion-judge-matthew-kacsmaryk-supreme-court-mifepristone/index.html.
    23.  
  23. Nathaniel Weixel, “Abortion Pill Ruling: What to Know and What Comes Next,” The Hill, June 13, 2024, https://thehill.com/policy/healthcare/4721337-supreme-court-rejects-mifepristone-challenge/.
    24.  
  24. Peggy Quince and Lauren Rikleen, “Federalist Society’s Influence on Courts Is Bad for Democracy,” Bloomberg Law, November 8, 2022, https://news.bloomberglaw.com/us-law-week/federalist-societys-influence-on-courts-is-bad-for-democracy.
    25.  
  25. “About Us,” The Federalist Society, https://fedsoc.org/about-us.
    26.  
  26. John Gramlich, “How Trump Compares with Other Recent Presidents in Appointing Federal Judges,” Pew Research Center, January 13, 2021, https://www.pewresearch.org/short-reads/2021/01/13/how-trump-compares-with-other-recent-presidents-in-appointing-federal-judges/.
    27.  
  27. Andrew Seger and Phil Mattingly, “Trump Transformed the Federal Judiciary. He Could Push the Courts Further Right in a Second Term,” CNN, July 13, 2024, https://www.cnn.com/2024/07/13/politics/donald-trump-judiciary-courts/index.html.
    28.  
  28. Gramlich, “How Trump.”
  29. Anne Nelson, “Texas Judge Who Ruled on Mifepristone Was Handpicked by the Same Network That Brought the Lawsuit,” Washington Spectator, April 18, 2023, https://washingtonspectator.org/texas-judge-who-ruled-on-mifepristone-was-handpicked-by-same-network-that-brought-lawsuit/.
    30.  
  30. Robert Maguire, “Leonard Leo’s Mysterious $200 Million Dark Money War Chest,” Citizens for Responsibility and Ethics in Washington, December 7, 2022, https://www.citizensforethics.org/reports-investigations/crew-investigations/leonard-leos-mysterious-200-million-dark-money-war-chest/. In 2020, the Federalist Society received $5.6 million in grants and, in 2021, it received $3.5 million from the 85 Fund, a dark money group.
  31. Heidi Przybla, “Leonard Leo Used Federalist Society Contact to Obtain $1.6B Donation,” Politico, May 2, 2023, https://www.politico.com/news/2023/05/02/leonard-leo-federalist-society-00094761.
    32.  
  32. David Smith, “How Trump Reshaped the Fifth Circuit to Become the ‘most Extreme’ US Court,” The Guardian, November 15, 2021, https://www.theguardian.com/law/2021/nov/15/fifth-circuit-court-appeals-most-extreme-us.
    33.  
  33. “The Leo Circuit: Federalist Society Judges on the Fifth Circuit Continue to Push Leo’s Extreme Agenda,” Accountable US, January 4, 2024, https://accountable.us/the-leo-circuit-federalist-society-judges-on-the-fifth-circuit-continue-to-push-leos-extreme-agenda/.
  34. “Alliance for Hippocratic Medicine v. FDA,” Center for Reproductive Rights, Accessed March 23, 2024, https://reproductiverights.org/case/alliance-for-hippocratic-medicine-v-fda/ ; Paul J. Weber, “Justice Department Appeals Texas Abortion Pill Order,” AP News, April 10, 2023, https://apnews.com/article/texas-abortion-pills-4b65ecc66d1b908019bdf3843a428d5a.
    35.  
  35. Weber, “Justice Department.”
  36. “Alliance for Hippocratic Medicine v. FDA.” The U.S. Supreme Court granted a temporary stay until April 19, halting the district court's order. Later, on April 19, the Court further extended the stay until Friday, April 21, at 11:59 p.m.
  37. FDA v. Alliance.
    38.  
  38. Zane McNeill, “Conservative Texas Judge Cited Now-Redacted Studies in Abortion Pill Case,” Truthout, February 7, 2024, https://truthout.org/articles/conservative-texas-judge-cited-now-redacted-studies-in-abortion-pill-case/.
    39.  
  39. McNeill, “Conservative Texas.”
    40.  
  40. Heidi Przybla, “‘Plain Historical Falsehoods’: How Amicus Briefs Bolstered Supreme Court Conservatives,” Politico, December 3, 2023, https://www.politico.com/news/2023/12/03/supreme-court-amicus-briefs-leonard-leo-00127497. For example, a December 2023 Politico analysis found that Justice Samuel Alito in the Dobbs ruling echoed amicus briefs that included arguments featured in a Federalist Society article. The investigation by Politico also uncovered that Leonard Leo and his network of nonprofit groups are associated, either directly or indirectly, with the majority of amicus briefs filed on behalf of conservative parties in seven of the most prominent court rulings issued over the past two years.
  41. Thomas Jipping, “Supreme Court to Settle 22-Year Conflict Over Abortion Drugs,” FedSoc Blog, February 20, 2024, https://fedsoc.org/commentary/fedsoc-blog/supreme-court-to-settle-22-year-conflict-over-abortion-drugs.
    42.  
  42. Jipping, “Supreme Court to Settle.”
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  43. Sharon Zhang, “SCOTUS Overturns ‘Chevron’ Deference, Sparking Massive Transfer of Power to Courts,” Truthout, June 28, 2024, https://truthout.org/articles/scotus-overturns-chevron-deference-sparking-massive-transfer-of-power-to-courts/.
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  45. “Americans United for Life (AUL),” InfluenceWatch, Accessed April 8, 2024, https://www.influencewatch.org/non-profit/americans-united-for-life-aul/. Senior staff at this organization previously worked for the ADF and the Heritage Foundation. FDA v. Alliance, Amicus briefs, https://www.supremecourt.gov/DocketPDF/22/22A902/263815/20230418114202584_Brief%20Amici%20Curiae%20of%20147%20MOC.pdf; https://www.supremecourt.gov/DocketPDF/22/22A902/263845/20230418125746279_Nos.%2022A901%2022A902%20Mississippi%20et%20al.%20Amicus%20Brief.pdf
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  46. “18 U.S. Code § 1462 - Importation or transportation of obscene matters,” Legal Information Institute at Cornell Law School, https://www.law.cornell.edu/uscode/text/18/1462.
  47. Dan Diamond, “Alito and Thomas kept bringing up Comstock. That scared abortion rights supporters,” The Washington Post, March 26, 2023, https://www.washingtonpost.com/health/2024/03/26/comstock-act-supreme-court-abortion-pill/.
  48. Kenji Yoshino, “After the Supreme Court’s Abortion Ruling, What Could Happen to Other Unwritten Rights?,” The Washington Post, November 30, 2022, https://www.washingtonpost.com/magazine/interactive/2022/substantive-due-process-dobbs/.
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  49. Heron Greenesmith, “Bodily Autonomy under Attack in the US: Access to Abortion and Gender-Affirming Care Dismantled by Christian-Right Theocracy,” Center for Research on Extremism, May 13, 2022, https://www.sv.uio.no/c-rex/english/news-and-events/right-now/2022/bodily-autonomy-under-attack-in-the-us.html.
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  50. Phillip Ayoub and Kristina Stoeckl, The global fight against LGBTI rights: How transnational conservative networks target sexual and gender minorities (New York: New York University Press, 2024).
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