Unanimous Supreme Court Rejects Effort To Restrict Abortion Drugs

It was the first major abortion ruling since the overturn of Roe v. Wade.

AP/Allen G. Breed, file
The drug mifepristone at the West Alabama Women's Center at Tuscaloosa, in March 2022. AP/Allen G. Breed, file

A unanimous Supreme Court has ruled that a group of doctors suing over abortion drugs did not have standing to sue, in the first major abortion ruling since the overturn of Roe v. Wade. 

At issue in the case, U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine, was whether the FDA’s decision to widen access to mifepristone — the first of a two-drug combination that the Guttmacher Institute describes as the “most common medication abortion regimen offered by US providers” — put women’s health and safety at risk. The case also centered around larger issues with the administrative state and who has standing to sue the FDA. 

“The plaintiffs do not prescribe or use mifepristone,” Justice Brett Kavanaugh wrote for the court. “And FDA is not requiring them to do or refrain from doing anything. Rather, the plaintiffs want FDA to make mifepristone more difficult for other doctors to prescribe and for pregnant women to obtain. Under Article III of the Constitution, a plaintiff’s desire to make a drug less available for others does not establish standing to sue.” 

Oral arguments in March drew large crowds of protesters on both sides of the abortion debate, as the case had the potential to change the abortion landscape in America. There were an estimated 642,700 drug-induced abortions in America in 2023, Guttmacher Institute’s tracking shows, making up 63 percent of all abortions — a 10 percent increase from 2020. 

A group of doctors and medical associations brought the case, arguing that the FDA acted unlawfully when it removed “in-person doctor visits to check for ectopic pregnancies, severe bleeding, and life-threatening infections” and when it took away reporting requirements that had provided patients and doctors with more information about the abortion drugs. 

“Women should have the ongoing care of a doctor when taking high-risk drugs,” a senior counsel for the Alliance Defending Freedom and Senator Hawley’s wife, Erin Hawley, who argued the case before the court, said in a statement. “The FDA’s own label for abortion drugs says that roughly one in 25 women who take them will end up in the emergency room. Yet the federal government continues to defend its reckless actions that jeopardize women’s health and safety.”

The Biden administration argued an “exceptionally small number” of women suffer health effects from the drugs and said the doctors lacked standing to bring the case since they weren’t required by law to prescribe the drugs. 

“In short, given the broad and comprehensive conscience protections guaranteed by federal law, the plaintiffs have not shown — and cannot show — that FDA’s actions will cause them to suffer any conscience injury,” the court’s opinion noted on Thursday. 

During oral arguments in March, while many of the justices appeared skeptical that the doctors had standing, Justice Samuel Alito brought up larger questions about who should be eligible to sue a federal administration, as the Sun reported

“Is there anybody who can sue and get a judicial ruling on whether what FDA did was lawful?” he asked the Biden administration’s lawyer. “Shouldn’t somebody be able to challenge that in court? Who?” 

Addressing that issue, the court’s opinion released Thursday noted that “it is not clear that no one else would have standing to challenge FDA’s relaxed regulation of mifepristone.” 

“But even if no one would have standing, this Court has long rejected that kind of “if not us, who?” argument as a basis for standing,” the opinion states.

The New York Sun

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