Dear Commons Community,
The U.S. Supreme Court unanimously rejected calls to restrict access to mifepristone, one of the two drugs used in medication abortion, in a ruling yesterday morning..
The ruling is a small win for abortion-rights groups, who believe the case was brought to the Supreme Court by a politically motivated anti-choice group that had no scientific-based evidence for rolling back access to mifepristone.
The ruling in FDA v. Alliance for Hippocratic Medicine, written by Justice Brett Kavanaugh, rejected the plaintiffs on standing. Justice Clarence Thomas filed a concurring opinion. As reported by several news media.
“Several pro-life doctors and associations sued FDA, arguing that FDA’s actions violated the Administrative Procedure Act. But the plaintiffs do not prescribe or use mifepristone. And FDA is not requiring them to do or refrain from doing anything,” Kavanaugh wrote.
“Rather, the plaintiffs want FDA to make mifepristone more difficult for other doctors to prescribe and for pregnant women to obtain,” he continued. “Under Article III of the Constitution, a plaintiff’s desire to make a drug less available for others does not establish standing to sue. Nor do the plaintiffs’ other standing theories suffice. Therefore, the plaintiffs lack standing to challenge FDA’s actions.”
The ruling is not surprising given what happened during March oral arguments. A majority of the justices, including some conservatives, appeared highly skeptical of whether Alliance for Hippocratic Medicine could even bring the case.
Plaintiffs are required to show they’ve suffered real harm in order to obtain standing to sue, and from the moment arguments began, the justices homed in on whether the group — and specifically, the doctors cited as examples in its briefs — met that bar. Many of the questions asked during arguments suggested that even the court’s most conservative justices saw the alliance’s standing argument as tenuous at best.
Alliance for Hippocratic Medicine, a collection of five anti-abortion medical groups, had claimed that the Food and Drug Administration overlooked safety issues when it loosened the rules for prescribing the abortion drug in 2016 and again in 2021, amid the COVID-19 pandemic. The anti-abortion group wanted to prohibit mifepristone from being sent through the mail or distributed at large pharmacy chains, among other restrictions.
“We recognize that many citizens, including the plaintiff doctors here, have sincere concerns about and objections to others using mifepristone and obtaining abortions,” the ruling states. “But citizens and doctors do not have standing to sue simply because others are allowed to engage in certain activities ― at least without the plaintiffs demonstrating how they would be injured by the government’s alleged underregulation of others.”
Although the ruling is a win for pro-choice groups, the ruling does not outright protect mifepristone. The decision still leaves the door open for future attacks on medication abortion, either through copycat lawsuits or continued litigation in U.S. District Court Judge Matthew Kacsmaryk’s courtroom.
Kacsmaryk, a far-right Donald Trump appointee well-known for his anti-abortion views, is the federal judge who ruled last year that the FDA unlawfully approved mifepristone when it first went to market over two decades ago. After the Supreme Court took the case, Kacsmaryk allowed attorneys general from Idaho, Kansas and Missouri to be added as plaintiffs to the case. Those officials have suggested they will continue litigating the case.
President Joe Biden released a statement in response to the ruling, writing that mifepristone and medication abortion remain available and approved across the country. “Today’s decision does not change the fact that the fight for reproductive freedom continues,” Biden wrote. “It does not change the fact that the Supreme Court overturned Roe v. Wade two years ago, and women lost a fundamental freedom. It does not change the fact that the right for a woman to get the treatment she needs is imperiled if not impossible in many states.”
The president also committed to calling on Congress to restore federal abortion protections.
Democrats and pro-choice groups were relieved by the court’s decision, but cautioned not to celebrate the ruling as a huge win.
“This decision was based not on the merits but the lack of standing — we are not yet out of the woods. This shouldn’t be a decision women are forced to fear year after year, case after case,” Senate Majority Leader Chuck Schumer (D-N.Y.) said in a statement.
Nancy Northup, the president and CEO at the Center for Reproductive Rights, said she is both relieved and angry about the court’s decision because it simply maintains the status quo.
“This case has no basis in fact or law and the lower courts should never have let it go forward. The FDA’s rulings on medication abortion have been based on science,” Northup said in a statement. “Unfortunately, the attacks on abortion pills will not stop here ― the anti-abortion movement sees how critical abortion pills are in this post-Roe world, and they are hell bent on cutting off access. In the end, this ruling is not a ‘win’ for abortion ― it just maintains the status quo, which is a dire public health crisis in which 14 states have criminalized abortion.”
Small wins are better than no wins!
Tony
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