MICHEL MARTIN, HOST:
We're going to talk more about this with Michele Goodwin. She is a professor of constitutional law and global health policy at Georgetown University. Professor Goodwin, good morning. Thanks for joining us.
MICHELE GOODWIN: Good morning. Thank you, Michel.
MARTIN: Why do you think the Supreme Court kicked this particular can down the road by keeping telemedicine access to mifepristone while the case plays out?
GOODWIN: Well, there are strong interests here, including amongst the manufacturers, that this is a product that is kept in the marketplace. There are some that say this is because there are political interests that have been articulated about the midterm and real concern that if there were a different kind of ruling, it might intensify the Democratics' ability to win midterm elections. The Supreme Court's not a political arm of government, but many are saying that it's acting very much like a political arm of government.
MARTIN: Is that a cynical take, or do you think that there's a merit to it?
GOODWIN: That is a very good question. I would say that 10 years ago, there would be judges and constitutional law professors that would say that is cynical. Stay away from it. But these days, there are judges, including Republican-appointed judges, that are saying you cannot ignore that the Supreme Court is very much looking like a political - a politically motivated arm of government. And that's unfortunate - the substance behind it.
MARTIN: Wow. So let me just - you know, we just heard from Selena that the FDA did not file any legal brief with the Supreme Court. Is that unusual? And does that tell us something about the agency's legal position or strategy?
GOODWIN: That is highly unusual, very much unusual. But we've seen things that are unusual. The FDA commissioner, Marty Makary, has been - his hand has been pushed into resignation. That's suggested because anti-abortion organizations are saying they're dissatisfied with the FDA and its slow move. One would have anticipated that the FDA would have responded to the Supreme Court to brief in this case, and the FDA did not. And I think that's also reflective of these political times and Donald Trump articulating that the midterms are very important. And in 2022, after the Dobbs decision, we saw that there wasn't the red wave, but Democrats took seats.
MARTIN: So I'm going to go to those dissents that Selena told us about. Justices Alito and Clarence Thomas used some really striking language. I'll take those separately. First of all, Justice Alito said it was remarkable for the court to issue an order without explaining the reasons why. Is it?
GOODWIN: Well, it's not. Justice Alito himself has done so. There have been shadow docket cases that - and emergency docket cases where the Supreme Court has taken on very significant issues and has issued orders without actually even signing it, so that you don't even know which justices decided in which way. Were - was there any discontent? And so it's actually not unusual. And it's a bit ironic coming from Justice Alito, considering that he's the author in the Dobbs decision, which overturned Roe v. Wade, which had nearly a 50-year precedent, and not based on health or science reasons.
MARTIN: And he called the mailing of mifepristone to patients in states with abortion restrictions a scheme to undermine the Dobbs decision. I don't know what to make of that.
GOODWIN: Well, that also is a bit ironic. Steve Vladeck noted, and one could say that this is just very mindful of a law professor, but a footnote where there is a typo where instead of Alliance for a Hippocratic Oath, it's Alliance for a Hypocritic (ph) - as in a hypocrite - Oath from Justice Alito's dissent. And so there are some that are saying, well, this is really a bunch of hyperbole. This is hypocritical coming from Justice Alito, considering the Dobbs decision itself and how that uprooted what had been a constitutionally protected right for people who want to have abortions.
MARTIN: So let's go to Justice Thomas. He said shipping abortion medication is, quote, a "criminal enterprise," so he said that these companies are engaging in a criminal enterprise. And he cited the Comstock Act. We only have about a minute left here, but what do you make of that?
GOODWIN: Well, it's pretty shocking. And what we see is the revival of what has been a law that has been dormant - a law that said, you know, products that are crude and lascivious cannot be sent in the mail. That included, at one point, medical school books because it had nude photos in it. You know, and there's a bit of cynicism there, too, really, if we go back and look at Comstock because you could send photos of lynched naked bodies through the mail while you couldn't naked pictures in a medical book.
MARTIN: So are things more or less confusing today?
GOODWIN: I think that there is clarity that people have because of the news coverage that mifepristone can be shipped in the mail, but I do think that it's overall confusing since the Dobbs decision itself. It's created a bit of chaos across the country, really quite dangerously for people's health.
MARTIN: That's Michele Goodwin, a professor of constitutional law and global health policy at Georgetown University. Professor, thank you.
GOODWIN: Thank you. Transcript provided by NPR, Copyright NPR.
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