The only people who may have actually believed the Supreme Court was getting out of the abortion issue by eliminating the constitutional right to abortion and returning the issue to the states likely were the conservative justices who voted to do so. The fallacy of that belief is on display in the arguments today and next month.
“Our decision returns the issue of abortion to those legislative bodies,” wrote Justice Samuel Alito, author of the 2022 decision in Dobbs v. Jackson Women’s Health Organization. Whether Alito and the four others who agreed to end the nearly 50-year-old right really believed, as Justice Brett Kavanaugh said at one point, that the court would be “neutral” going forward, only they know for sure.
The fact is the Supreme Court has two abortion-related challenges to decide this term, one of which is the most consequential challenge since the 2022 Dobbs decision.
Food and Drug Administration v. Alliance for Hippocratic Medicine is particularly consequential because use of the abortion drug, mifepristone, now accounts for the majority of abortions occurring today. Mifepristone, part of a two-drug protocol, can be used alone. It blocks the hormone progesterone which is necessary for a pregnancy to continue.
On Monday, The Washington Post reported on a new study published in JAMA that found, according to the Post: “Nearly 28,000 additional doses of pills intended for ‘self-managed’ abortions were provided in the six months after the fall of Roe v. Wade— more than quadrupling the average number of abortion pills provided that way per month before the decision and suggesting that many women have turned to medication abortion to circumvent state bans.”
Another recent study revealed that medication abortions accounted for 63 percent of the more than 1 million abortions performed in 2023. It’s important to note that there have been multiple, respectable studies done at home and internationally that show mifepristone to be overwhelmingly safe.
Questions at the Court
The Supreme Court is not considering whether to remove mifepristone from the market where it has been available following FDA approval for nearly 25 years. Instead, the challengers seek to restrict its access by arguing that the FDA was arbitrary and capricious, violating the federal Administrative Procedure Act when in 2016, it did the following:
- Approved the drug for use in the first 10 weeks of gestation (up from seven weeks)
- Permitted licensed, non-physician health care providers to prescribe the drug
- Changed the drug’s adverse event reporting requirement because after 15 years of experience with the drug, a heightened reporting requirement was not needed as serious adverse events were exceedingly rare.
They also challenge 2021 changes by the FDA that, based on its pandemic experience, the agency eliminated the in-person dispensing requirement, permitting dispensing via mail.
The challengers initially filed their lawsuit in federal district court in Amarillo, Texas, which has only a single judge: Matthew Kacsmaryk, a religious conservative who was counsel to the conservative anti-abortion First Liberty legal group before being appointed by former President Donald Trump. Kacsmaryk ruled that the challenged FDA changes likely violated the federal law and imposed a preliminary injunction which the U.S. Court of Appeals for the Fifth Circuit then upheld.
The Biden Administration has brought the appeal to the Supreme Court on behalf of the FDA. The U.S. solicitor general argues that the challengers– an umbrella organization of anti-abortion health organizations and four individuals– have a major problem before the court even considers the merits of their arguments. These challengers have no standing– no legal right– to be in court because they have no concrete injuries or face an imminent injury, according to the government.
The challengers’ primary argument, the government says, is that their members could be forced to violate their consciences by completing an abortion on a woman who goes to a hospital emergency room. But in the more than two decades of the drug’s life, the government answers, there is no evidence of that having occurred.
The challengers counter that their injuries are not speculative. “The agency’s own numbers say that roughly one in 25 women who take mifepristone will end up in the emergency room; and Respondent doctors have testified to routinely treating women suffering abortion-drug harm,” the challengers contend.
On the merits, the justices will have to sort through the FDA’s voluminous record of safety studies, public comments, and other actions to determine whether the 2016 and 2021 changes were lawful. A tsunami of friend-of-the-court briefs has been filed by a wide range of parties, including drug companies, food and drug legal scholars, state lawmakers, civil rights groups, pro-abortion rights and anti-abortion organizations, former FDA officials and more.
The U.S. solicitor general tells the court: “To the government’s knowledge, this case marks the first time any court has restricted access to an FDA-approved drug by second-guessing FDA’s expert judgment about the conditions required to assure that drug’s safe use. The Fifth Circuit reached that unprecedented result through a series of errors that contradict this court’s precedents and violate black-letter Article III and administrative-law principles.”
The challengers tell the justices: “FDA unlawfully and without adequate explanation removed safeguards it had once deemed necessary to protect women who use abortion drugs. With so much at stake, ‘the Government should turn square corners in dealing with the people.’”
A Second Case
On April 24, the justices will take up the second abortion-related case which also involves a federal law. In Moyle, Speaker of the Idaho House of Representatives v. United States, the justices will decide if Idaho’s Defense of Life Act is “pre-empted,” or blocked, because it conflicts with the federal Emergency Medical Treatment and Labor Act.
Idaho’s law prohibits abortion except when necessary to prevent death or in cases of rape or incest. The federal law, known as EMTALA, says that “no one who comes to an emergency room in need of emergency medical care should be denied the treatment required to stabilize her condition,” according to the U.S. solicitor general. “For some pregnant women suffering tragic emergency complications, the only care that can prevent grave harm to their health is termination of the pregnancy.” The law requires participating hospitals to provide that care, but Idaho’s law prohibits it and thus is preempted, according to the government.
The justices are no strangers to pre-emption issues, but abortion casts its own unusual shadow whenever it figures in a Supreme Court case.
For now, the spotlight is on today’s arguments and its high stakes for both sides of this long running battle. Tune into the arguments at 10 a.m. on the court’s website, or later when audio and transcripts are posted.
Marcia Coyle is a regular contributor to Constitution Daily and PBS NewsHour. She was the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 30 years.
