NRL News
202.626.8824
dadandrusk@aol.com

More about FDA v. Alliance Hippocratic Medicine and what the Supreme Court asked and heard on Tuesday

by | Mar 27, 2024

By Dave Andrusko

The justices of the Supreme Court on Tuesday heard almost 90 minutes of oral arguments in the much anticipated case of FDA v. Alliance Hippocratic Medicine. Almost every media outlet had a list of takeaways—4 or 5 usually—that they thought captured the most salient issues.

At the heart of the discussion before the justices were (a) whether the Alliance had legal standing to file the lawsuit; and (b) the decisions in 2016 and 2021 made by the FDA that greatly weakened regulations of the abortion drug mifepristone.

National Right to Life offered two extremely thoughtful summaries—here and here—which we will turn to momentarily.

As for the issue of standing, Justice Elena Kagan described the doctors’ standing argument as “very probabilistic.” Justice Ketanji Brown Jackson argued that federal conscience laws and state conscience laws would protect the right of medical personnel against being forced to perform abortions.

Hawley started out by addressing standing:

We’ve heard a lot this morning about standing. Article III is satisfied here because, one, the FDA relies on OB hospitalists [obstetric hospitalists] to care for women harmed by abortion drugs. Two, the FDA concedes that between 2.9 and 4.6 percent of women will end up in the emergency room. And, three, the FDA acknowledges that women are even more likely to need surgical intervention and other medical care without an in-person visit.

What about Justices Kagan’s and Brown Jackson’s argument that conscience protections will protect them from being formed to be involved in an abortion?

Hawley, however, effectively explained that, in actual emergency rooms, doctors may not know what they will have to do until they face a patient, without the luxury of requesting the protection of a federal statute and knowing whether or not they may exercise their religious liberty right to “opt out.”

Dr. Randall K. O’Bannon, NRLC’s Director of Education & Research, pointed out that the issue of safety was not addressed in any depth, let alone was mifepristone’s danger to women conclusive refuted.

And there was plenty of evidence. In testimony given to the Fifth Circuit, which the justices must have reviewed, Dr. Christine Francis, CEO of  AAPLOG, relayed horrific stories of women she had treated.

[T]he patient presented back at our emergency room with heavy vaginal bleeding and unstable vital signs as a result of taking chemical abortion drugs… Due to the amount of bleeding that she was experiencing and evidence of hemodynamic instability, however, my partner had no choice but to perform an emergency D&C. The patient needed to be hospitalized overnight for close observation after the D&C.

 

Not only did my partner need to provide several hours of critical care for this patient, but my partner also needed to call in a back-up physician to care for another critically ill patient. And because the preborn baby still had a heartbeat when the patient presented, my partner felt as though she was forced to participate in something that she did not want to be a part of — completing the abortion

And there was the Amici brief to the Supreme Court on behalf of nearly three thousand women who have experienced injuries from chemical abortion pills.

In a March 18 press release, the Justice Foundation announced that it filed an Amici brief to the Supreme Court, representing the cases of 2,743 women who experienced severe physical and emotional consequences after taking chemical abortion pills.

 

The brief contains several witness accounts from women who took chemical abortion pills. One woman among them described the aftermath of taking mifepristone as “one of the most horrific experiences of my life.”

We could offer additional comments from Hawley. For example, she explained the non-economic costs to the pro-life physicians:

Respondent doctors have done here is chosen their particular practice, as well as structured that medical practice to bring life into the world. When they are called from their labor and delivery floor down to the operating room to treat a woman suffering from abortion drug harm, that is diametrically opposed to why they entered the medical profession. It comes along with emotional harm. Dr. Skop talks about these being heartbreaking situations and some of the most stressful work she’s had to deal with, Your Honor.

We’ll be writing more about the case the remainder of the week and in the April edition of National Right to Life News. Hope you have time to read it all.

Categories: Supreme Court