(image from Yahoo News)
Despite the overturn of Roe v. Wade and subsequent abortion bans in 14 states, more abortions were performed in 2023 than there have been since 2011. Abortions have risen in almost all states where it’s legal, and especially in states such as New Mexico that border those with bans. Medication abortions, which rely on the pills mifepristone and misoprostol that can be administered at home, are also rising.
However, the availability of mifepristone is threatened by the Supreme Court case FDA v. Alliance for Hippocratic Medicine, which is set to be heard on March 26.
The case started in Trump-appointed judge Matthew Kacsmaryk’s Northern Texas district court, where a conservative legal group challenged FDA approval of mifepristone. Kacsmaryk issued a ruling to suspend FDA approval of the drug, relying on remarkably faulty reasoning, including retracted studies and anonymous blog posts from an anti-abortion website. The United States Court of Appeals for the Fifth Circuit (a mostly Republican court) allowed mifepristone to keep FDA approval, but supported Kacsmaryk’s challenges to changes the FDA made to the protocol for prescribing mifepristone. The actual changes seem minor: reducing the dose and allowing the drug to be used before 70 days of pregnancy instead of 49, but they would lead to several months where the drug could not be prescribed as its manufacturer scrambled to recertify and revise.
The Alliance for Hippocratic Medicine argues that the FDA’s changes to the mifepristone protocol should be overturned because the FDA conducted multiple studies of different changes to the drug’s use, instead of one study in which they examined the combined effects of all the changes they would eventually implement. It’s an utterly precedentless argument that many other FDA-approved drugs wouldn’t pass.
The plaintiffs don’t even strictly have standing for their case. There has been no concrete injury to the Alliance for Hippocratic Medicine, other than the nebulous possibility that some of their members might “feel complicit” in an abortion if they had to provide care to someone who took mifepristone, according to Vox. It shows just how far our judicial system, a supposedly legal institution, has been abused for political ends.
The Supreme Court passed an emergency stay on all restrictions of mifepristone and will probably strike down all of Kacsmaryk’s decision. Should they rule in favor of the Alliance of Hippocratic Medicine, they’ll be unleashing chaos where many medications currently in use can be challenged and restricted because they didn’t fulfill the Fifth Circuit’s criteria that the FDA conduct one all-encompassing study. Justices often argue that they shouldn’t be concerned about the consequences of their rulings, but undermining the FDA’s authority is probably going too far even for our current conservative court. Moreover, given how much the Democrats will use abortion to rally their supporters, it’s probably politically smart to keep the drug.
Sources:
https://www.nbcnews.com/health/womens-health/map-pills-medication-abortions-are-legal-rcna70490
https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html
https://abcnews.go.com/538/ivf-abortion-access-shape-2024-election/story?id=108301112
https://vox.com/scotus/2024/3/21/24105984/supreme-court-mifepristone-abortion-pills-fda-alliance-hippocratic-medicine
2 comments:
I agree that the Supreme Court is likely not going to rule in favor of the Alliance for Hippocratic Medicine -- if they did, I feel it'd be a great example of judicial activism and reaching beyond the domain of power of the Supreme Court. It'd be pretty unreasonable to completely overturn the FDA's decisions. Also, given the upcoming election as you mentioned, it would reflect pretty badly on the Republicans to go so far in fighting against abortion and to show political biases in the Court so obviously.
I do wonder how, given that the Alliance for Hippocratic Medicine had no standing to sue, how they were able to bring their case all the way to the Supreme Court, since we learned in class that it requires standing to even bring a case to court.
I agree with Rachel and Alex that this case is an example of Supreme Court reaching beyond its intended legal power into political influence, especially when the Alliance for Hippocratic Medicine's standing to sue is so nonexistent. Also, the argument that doctors might feel "complicit" when treating people on mifepristone doesn't really seem to apply any more regardless of when the drug is allowed to be used (before 70 days of pregnancy vs before 49), which just makes their standing to sue even weaker.
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