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Five Takeaways from today’s Supreme Court decision

by | Jun 13, 2024

By Dave Andrusko

In a unanimous decision written by Justice Brett M. Kavanaugh, the nine justices held that the Alliance for Hippocratic Medicine lacked legal standing to challenge the Food and Drug Administration’s decisions in 2016 and 2021 that make mifepristone much more broadly available. The Alliance questioned the way the FDA considered mifepristone and that cavalier way it loosened regulations on its distribution and use.

Here are five takeaways from this morning’s decision.

#1. “Today’s decision by the U.S. Supreme Court was decided on standing, not the merits of the case,” said Sarah Zagorski, the Communications Director for Louisiana Right to Life. “The serious concern brought by pro-life doctors–that the FDA recklessly allowed dangerous chemical abortion drugs to be sent through the mail without further physician oversight– still remains. Therefore, any assertion that the FDA did nothing wrong or that their approval was indeed valid is erroneous.”

Lawrence Hurley, of NBC News, added

By throwing out the case on such grounds [that the plaintiffs lacked standing], 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.

#2. Women’s health was on the line and the FDA failed them miserably. “In 2016, at the behest of Danco, the Obama administration, and the abortion industry, the FDA made serious changes in the protocol,” wrote Dr. Randall K. O’Bannon, NRLC’s Director of Education & Research. “The FDA loosened REMS (Risk Evaluation and Mitigation Strategy) regulations and extended eligibility for the drugs to women up ten weeks past their last menstrual period (LMP); broadened the prescriber pool to any “certified healthcare provider”; and dropped the number of required visits to one initial encounter for the woman to be screened and pick up her pills.”

#3. In the 38-page decision, Justice Kavanaugh wrote, “Allowing doctors or other healthcare providers to challenge general safety regulations as unlawfully lax would be an unprecedented and limitless approach and would allow doctors to sue in federal court to challenge almost any policy affecting public health.”

Hurley noted, “The FDA had the backing of the pharmaceutical industry, which has warned that any second-guessing of the approval process by untrained federal judges could cause chaos and deter innovation.”

Judge James Ho of the 5th U.S. Court of Appeals addressed that issue as the case ran up and down the legal chain of command. Judge Ho wrote, “Scientists have contributed an enormous amount to improving our lives. But scientists are human beings just like the rest of us. They’re not perfect. None of us are. We all make mistakes. And the F.D.A. has made plenty.”

#4. “In August, the Fifth Circuit ruled that while mifepristone should remain on the market, the FDA went too far when it relaxed restrictions in 2016 and 2021,” Ryan Mills wrote for National Review Online. “But that ruling never took effect, because by then the Supreme Court had already issued a full legal stay in the case, preserving access to the drug until all of the appeals were played out.”

In other words, because of the Supreme Court’s stay, mifepristone has been available through the mail. Among the other deleterious effects of the pandemic, the FDA changed its telemedicine regulation because of COVID-19, making access to mifepristone much easier.

#5. “Women remain unprotected from common complications with the abortion drug such as hemorrhage, infection, and failure to identity rupturing ectopic pregnancies in a timely manner,” said Carol Tobias, president of National Right to Life in a statement released earlier today. “Tracking these complications became more difficult in 2016 when the FDA decided that medical personnel and facilities do not need to report complications arising from the use of the abortion pill mifepristone.”

Tobias concluded, “It is sad that because of these FDA decisions, women will not get the information they deserve before making a permanent life or death decision. While the abortion pill remains legal, we hope this battle to reinstate safety precautions will continue.”

The mifepristone dispute is not the only abortion case currently before the court. Earlier this year, pro-abortion President Biden issued an abortion mandate under the Emergency Medical Treatment and Active Labor Act (EMTALA) which is contrary to that federal law. EMTALA was intended to protect emergency room patients from being dumped and does not mandate that the hospital provide medical care that is contrary to state law.

A Supreme Court decision on the Biden emergency room abortion mandate is expected imminently.

Categories: Supreme Court