WASHINGTON (CN) — A medical group representing anti-abortion doctors urged the Supreme Court on Tuesday to support an injunction that would restrict access to medication abortion nationwide.
“Across decades, the agency has stripped away every meaningful and necessary safeguard on chemical abortion, demonstrating callous disregard for women’s well-being, unborn life, and statutory limits,” John Bursch, an attorney with the Alliance for Defending Freedom representing the doctors, declared in a new brief, referring to the Food and Drug Administration, which first approved abortion pills in September 2000.
The argument comes one day before a stay put in place by Justice Samuel Alito is set to expire. Alito granted the temporary relief to give the parties time to brief the justices on the fight over mifepristone — one of two drugs used in medication abortions.
Though the FDA maintains that its two-decade-old approval of mifepristone upholds appropriate safety standards, a group of doctors represented by the alliance contend that more restrictions are necessary for the medication to be used.
“The only effect of the lower court’s order is to restore a modicum of safety for the women and girls who use the drug, including supervision and oversight by a physician,” Bursch wrote.
U.S. District Judge Matthew Kascmaryk kicked off the high-stakes legal battle over medication abortion not two weeks ago when he paused mifepristone's FDA approval.
The Alliance for Hippocratic Medicine — an advocacy group that represents doctors opposed to abortion — was incorporated in Amarillo, Texas, only three months after the Supreme Court overturned Roe v. Wade. With this headquarters, the alliance was able to file its suit to get mifepristone taken off the shelves in the Amarillo division of the Northern District of Texas, landing on the docket of Kacsmaryk, who ruled only months earlier that birth control access under Title X was unconstitutional. The case is among several with controversial outcomes from the Trump appointee in his four years on the bench.
No doctor represented by the Alliance for Hippocratic Medicine has ever prescribed mifepristone, a drug with a better safety rating than common medications like penicillin and erectile dysfunction drugs. It is the position of the Alliance for Hippocratic Medicine, however, that its members could possibly be burdened if they ever had to treat patients who had adverse reactions to mifepristone.
“Plaintiffs have suffered numerous concrete and specific injuries because of FDA’s continual deregulation of chemical abortion, including the forced performance of elective abortions contrary to deeply held beliefs; the interference with Plaintiffs’ medical practice and consumption of crucial and limited resources; and the enormous pressure and stress caused by emergency treatment from chemical abortion gone wrong,” Bursch wrote.
Kacsmaryk not only upheld the group’s theory of standing but also relied on an 1873 law known as the Comstock Act to pause mifepristone’s FDA approval. The Comstock Act banned sending pornographic literature, contraceptive and early abortion-inducing substances through the mail.
On appeal, the Fifth Circuit mostly affirmed Kacsmaryk’s injunction. While the panel shot down a part of the ruling that would take mifepristone off the shelves nationwide, they upheld strong restrictions on the prescription and distribution of the drug. Instead of being able to prescribe abortion pills via telehealth, patients would be required to schedule three doctor visits. Abortion seekers would also be required to take the medication in a doctor's office instead of at their homes.
The group claims this shouldn’t burden the FDA because these same standards were in place years earlier.
“Any ‘necessary adjustments’ FDA must make is hardly irreparable harm; it occurs every time a court sends an agency back to the drawing board,” Bursch wrote. “And the agency need only go back to its preapproved 2011 regimen and label. The ‘threat’ of conflicting orders here is also illusory, as the Fifth Circuit’s order does not require FDA to do anything.”
The Biden administration and Danco Laboratories — mifepristone’s maker — asked the Supreme Court for emergency relief on Friday. The government said it would take months for the FDA to relabel any mifepristone currently on the market, the outcome that the Fifth Circuit's ruling requires. Meanwhile a generic version of mifepristone would have to forfeit its approval. Mifepristone is used in around 50% of abortions nationwide, and two-thirds of the drugs used are the generic version.
Alito offered an administrative stay while the court considered the applications. The temporary stay ends Wednesday when the full court will weigh in on the case.
The doctors claim the only reason this case is before the justices is because it concerns abortion.
“If this litigation involved any other drug, there would not even be a debate as to whether this Court should intervene mid-litigation stream with extraordinary relief,” Bursch wrote.
The doctors call it unlikely that the government's appeal will prevail on the merits.
“No amount of agency deference nor re-peated incantation of ‘science’ can cure FDA’s failure to engage in the reasoned decision-making required by the Administrative Procedure Act (APA),” Bursch wrote. “Not a single study that FDA relied on for the 2016 Major Changes, for instance, examined what would happen if FDA removed every safeguard. This is akin to an agency finding a car safe based on studies with seatbelts without airbags, then concluding the car was safe without either seatbelts or airbags.”
The Department of Justice did not respond to a request for comment on the filing.
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