The Supreme Court has rejected a challenge to the wide availability of the abortion pill mifepristone. The court ruled unanimously that the anti-abortion doctors who sued to have the FDA rescind the approval of the drug didn’t have standing to bring the suit in the first place.
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This is actually bad news for Joe Biden and his re-election campaign. It damages his narrative that “reproductive rights” are in danger. In a statement, Biden said that “the fight for reproductive freedom continues.”
“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,” he added.
This is not a good issue for the anti-abortion lobby to stake so much on. About two-thirds of Americans favor granting access to mifepristone. And its enforceability depends on peeking in people’s mailboxes to see if they’ve ordered something they shouldn’t have.
Justice Brett Kavanaugh, writing for the court, wrote that while plaintiffs have “sincere legal, moral, ideological, and policy objections to elective abortion and to FDA’s relaxed regulation of mifepristone,” that does not mean they have a federal case.
The plaintiffs failed to show they had suffered any injury, meaning that “the federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions,” he added.
“The plaintiffs may present their concerns and objections to the president and FDA in the regulatory process or to Congress and the president in the legislative process,” Kavanaugh wrote. “And they may also express their views about abortion and mifepristone to fellow citizens, including in the political and electoral processes.”
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Alliance Defending Freedom, which brought the suit, was obviously disappointed in the decision.
“We are disappointed that the Supreme Court did not reach the merits of the FDA’s lawless removal of commonsense safety standards for abortion drugs,” said Erin Hawley, one of the group’s lawyers.
The suit is continuing in three states — Idaho, Missouri, and Kansas — and those suits are advancing different arguments on standing.
Since the court threw out the suit on standing, there’s still no decision on the legal merits of the case. Did the FDA overstep its regulatory authority in approving mifepristone?
By throwing out the case on such grounds, the court avoided reaching a decision on the legal merits of whether the FDA acted lawfully in lifting various restrictions, including one making the drug obtainable via mail, meaning the same issues could yet return to the court in another case.
Another regulatory decision left in place means women can still obtain the pill within 10 weeks of gestation instead of seven.
Likewise a decision to allow health care providers other than physicians to dispense the pill will remain in effect.
It’s hard to argue that isn’t unusual for the FDA to approve a drug with possible serious side effects for delivery by the U.S. Post Office.
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Mifepristone was approved during the Clinton administration. Mail delivery of the drug was approved during the pandemic. It wasn’t until last year that the FDA approved the drug formally for mail delivery.
Those were clearly political decisions not necessarily based on science. However, the court was unable to decide that question because the doctors could not show that the availability of the drug harmed them.
It’s a legal case that demands clarification. I doubt whether the court will ban mifepristone altogether. However, requiring a doctor’s prescription and preventing mail delivery are certainly possible.