Call it wishful thinking or strategic amnesia, but just two years after the controversial decision that abolished the constitutional right to abortion, the Supreme Court is reconsidering the issue of nationwide access to abortion. The court is poised to decide on a high-stakes appeal.
At issue is the federal approval process for mifepristone, a drug used to terminate pregnancies.
Oral arguments are scheduled for Tuesday, and a ruling is expected in about three months, as the next presidential election gets into full swing.
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Bottles of the abortion pills mifepristone (left) and misoprostol (right) at a clinic. (Charlie Neighborgal)
The case hinges on a complex federal regulatory process, but reproductive rights will once again be at the forefront. This is an appeal with huge legal, social, and political implications, a high-stakes case that follows the court’s landmark decision invalidating Roe v. Wade.
national impact
New data from the Guttmacher Institute research group shows that nearly two-thirds of all abortions in the United States in 2023 will rely on mifepristone. Abortion rights groups say the drug has been proven safe and that the court’s decision could negatively impact 40 million women nationwide. Anti-abortion groups counter that the U.S. Food and Drug Administration has illegally promoted a nationwide, on-demand abortion system for two decades, ignoring health and safety laws in several states.
The Supreme Court has so far allowed the FDA to continue regulating the drug while the appeals process takes place. This includes ongoing telehealth prescribing and retail pharmacy dispensing.
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“I think it was probably a little premature to say the court was completely getting out of the abortion business,” said Thomas Dupree, a former Justice Department official under former President George W. Bush. “I think the justices clearly recognize the fact that this is an election year, but I don’t think the fact that it’s an election year drives the outcome of these decisions.” ”
Supreme Court (LR) members Justice Amy Coney Barrett, Justice Neil M. Gorsuch, Sonia Sotomayor, and Clarence Thomas. Chief Justice John G. Roberts Jr. Justice Ketanji Brown Jackson, Justice Samuel A. Alito Jr., Justice Elena Kagan, and Justice Brett M. Kavanaugh. (Collected by the U.S. Supreme Court)
The questions raised come nearly two years after the Supreme Court overturned the nationwide constitutional right to abortion, giving individual states individual discretion to regulate the procedure.
At the time, the court’s 5-4 conservative majority ruled that “unelected members of this court” would intervene in the future to enforce the nation’s abortion policy in “ignorance of the democratic process” of lawmakers. He declared that there was no such thing.
Approval process
But a recent legal challenge from anti-abortion groups has called into question the FDA’s original 2000 national approval process (including recent revisions) for the drug used to terminate early pregnancies. It was thrown.
Mifepristone is taken with misoprostol, and the combination of the two drugs is known as a medication abortion or “abortion pill.” The lower court concluded that the federal agency did not adequately consider the potential health risks to women when revising its regulations for mifepristone beginning in 2016.
These revisions (last updated in 2023) include reducing recommended doses, allowing the drug to be used from 7 to 10 weeks into pregnancy, and authorizing generic versions and allowing mailing (eliminating in-person doctor visits). It will be done. Among other measures.
Major pharmacy chains Walgreens and CVS announced this month that they were certified to dispense abortion pills under the new rules.
A box of the drug mifepristone sits on a shelf at the West Alabama Women’s Center on March 16, 2022 in Tuscaloosa, Alabama. (Allen G. Breed, File)
According to a Fox News investigation, 36 states allow some form of access to mifepristone, with 21 states allowing full access and 15 states allowing limited access. . Fourteen states completely ban abortion, including medication abortion, with some exceptions.
The drug’s manufacturer, Danko Laboratories, had appealed to the Supreme Court for a final review of the merits.
Dozens of advocacy groups, members of Congress and a coalition of states involved in the issue have filed legal briefs in recent weeks.
discussion
The plaintiffs are led by four national medical associations made up of anti-abortion doctors affiliated with the conservative advocacy group Alliance Defending Freedom. They sued the FDA immediately after the Dobbs decision, but ADF also led the lawsuit in hopes of building momentum for further abortion regulation through litigation.
“The FDA recklessly lifted initial protections, such as in-person physician visits, leaving women alone with severe complications,” said Erin Hawley, ADF senior counsel who will argue the case in court. ” he said. “It’s appalling that the FDA would eliminate even the first in-person visit to check for a life-threatening condition like an ectopic pregnancy based on research that says it wasn’t appropriate. Women have a right to better. There is.”
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A lower court agreed with anti-abortion groups and concluded that the FDA did not adequately consider potential health risks to women when it revised its guidelines for mifepristone eight years ago.
People march for abortion rights from Pershing Square to City Hall on April 15, 2023 in Los Angeles. (Apu Gomez)
The Supreme Court is scheduled to weigh in on these issues and could reexamine whether the drug’s original 24-year approval process had similar flaws under the federal Administrative Procedure Act.
Another important issue is whether physicians who challenge FDA authorities have “standing” or ability to sue. This is because these doctors are said to have never actually prescribed mifepristone. Since the plaintiffs are doctors, not patients, the lawsuit will also consider whether they actually suffer “harm” from using the drug.
“There is no greater risk to women across America,” President Biden said this month. “In the face of relentless attacks on reproductive freedom by Republican lawmakers, Vice President Harris and I will fight to ensure women have access to the health care they need and to protect the independent, evidence-based approval of the Food and Drug Administration. “Continue to regulate mifepristone and restore Roe v. Wade protections under federal law.” ”
The Biden administration and abortion rights groups say continued access to mifepristone is essential. And a ruling limiting the FDA’s authority could have far-reaching implications for health care, they say.
“If the logic of the lower court’s decision is allowed to stand, it threatens to further disrupt the pharmaceutical industry more broadly and potentially prevent the FDA from doing its job on behalf of the American people. ” said Brianne Golod, chief counsel at the progressive Center for Constitutional Accountability.
“It would result in major changes to the way medicines are tested and brought to market, potentially denying individuals access to the life-saving medicines they need.”
supreme court (Mariam Zuhaib)
Ongoing controversy
And this is not the only abortion issue facing the Supreme Court.
The justices are scheduled to hear oral arguments next month on a challenge to the Idaho regulation and whether it violates federal law that requires hospitals to treat patients in life-threatening situations.
A federal court has blocked enforcement of Idaho’s Defense of Life Act, which prohibits abortion unless necessary to save the mother’s life, saying the federal Emergency Medical Labor Act preempts it. The state has a near-total ban on abortion and criminal penalties for doctors who perform abortions except in limited circumstances.
But the Biden administration has announced that federal law requires emergency rooms to provide “stabilizing care,” including abortions, for a broader range of situations than the mother’s life, including when a patient’s health is in “serious jeopardy.” I objected that it was.
Other pending court challenges that could ultimately reach the justices include whether the federal Title These include whether people with religious beliefs can bring First Amendment challenges to state prohibitions.
Pro-life women celebrate in front of the Supreme Court in Washington on June 24, 2022, following the Supreme Court’s decision to overturn Roe v. Wade. (Gemnu Amarasinghe)
But if the court rules on these disputes, the political fallout for November’s election could be immediate and significant. Many progressives, while condemning the 2022 Dobbs decision that struck down the federal right to abortion, credit the debate for energizing base and floating voters. While the midterm elections yielded better-than-expected results for the Democratic Party, they exposed strategic vulnerabilities for the Republican Party and negated the anticipated “red wave.”
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The Supreme Court’s decision in June in the face of an abortion pill case could have a similar impact, with nine robed ordained men and women in what is perhaps the most controversial society facing this country. It is poised to reignite a referendum that will divide the issue.
The mifepristone cases are FDA v. Hippocrates Medical Union (23-235) and Danco Laboratories, LLC v. Hippocrates Medical Union (23-236).
