Abortion rights: Supreme Court will hear FDA challenge to mifepristone bar

 

Kaiser Family Foundation

A group of physicians labeling themselves the Alliance for Hippocratic Medicine has won a broad injunction against the FDA for its approval of Mifepristone - part of the two judge regimen which is employed in most abortions today. In  Food and Drug Administration v. Alliance for Hippocratic Medicine No. 23-235 the United States Department of Justice  petitioned the Supreme Court to block the suit.  The petition has been granted and is consolidated with the related manufacturer Danco's case. Elizabeth Prelogar, the Solicitor General explains in the Department of Justice's Cert Petition :

In 2000, the U.S. Food and Drug Administration (FDA) approved mifepristone for termination of early pregnancy based on the agency’s scientific judgment that the drug is safe and effective. FDA has maintained that judgment across five presidential administrations, and it has modified the original conditions of mifepris-tone’s approval as decades of experience have further confirmed the drug’s safety. Today, more than half of American women who choose to terminate their pregnancies rely on mifepristone to do so. And study after study has shown that when mifepristone is taken in accordance with its approved conditions of use, serious adverse events are exceedingly rare.

Respondents are doctors and associations of doctors who oppose abortion on religious and moral grounds. They do not prescribe mifepristone, and FDA’s approval of the drug does not require them to do or refrain from doing anything. Yet the lower courts held that respondents have Article III standing to challenge FDA’s actions. And the courts then countermanded FDA’s scientific judgment by suspending FDA’s 2016 changes to mifepristone’s approved conditions of use and FDA’s 2021 decision to eliminate the requirement that the drug be dispensed in person.

The Fifth Circuit modified the order of Amarillo, Texas District  Judge Matthew Kaczmaryk, who was rewarded with this seat for his anti-abortion advocacy.  The case is only one piece of a broad attack on the right of women to terminate a pregnancy.  On another front Harvard professor Adrian Vermeule argues forcefully that the 19th century Comstock Act bars mailing abortifacients.  Of course the fact that  the FDA has found the mifestiprone protocol to be safe and effective might persuade some that the text of the Act no longer commands.  But the six conservatives on the Supreme Court are unlikely to find such arguments persuasive.

- GWC