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Saturday, July 13, 2024 | Back issues
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Supreme Court throws out challenge to abortion pill

The high court’s ruling keeps a popular abortion drug on shelves nationwide.

WASHINGTON (CN) — The Supreme Court on Thursday rejected new limits on mifepristone, ruling that conservative doctors couldn’t challenge the abortion drug’s approval because they were not harmed by a medication they do not prescribe.  

In a unanimous ruling, the justices said the federal courts were the wrong venue for the doctors’ objections to the abortion drug. 

“The plaintiffs have sincere legal, moral, ideological and policy objections to elective abortion and to FDA’s relaxed regulation of mifepristone,” Justice Brett Kavanaugh wrote for the court. “But under Article III of the Constitution, those kinds of objections alone do not establish a justiciable case or controversy in federal court.”

Kavanaugh said since the doctors' moral objections were not enough they tried to advance complicated causation theories to create an injury. 

“Because the plaintiffs do not use mifepristone, they obviously can suffer no physical injuries from FDA’s actions relaxing regulation of mifepristone,” Kavanaugh wrote. 

President Joe Biden said the court’s ruling means that women can continue to access a safe and effective medication that was approved by the FDA more than 20 years ago. Biden, however, said the decision does not change that women lost a fundamental freedom when the justices overturned Roe v. Wade almost two years ago. 

“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,” Biden said in a statement. 

Biden said the fight for reproductive freedom remains unchanged, referring to attacks on abortion pills as “part of Republican elected officials’ extreme and dangerous agenda to ban abortion nationwide.” 

Mifepristone was approved over two decades ago for its use in ending early-stage pregnancies. Taken together with misoprostol — an ulcer medication — the regime can be used up to 10 weeks' gestation.

Since Roe v. Wade was overruled by the court's conservative majority in 2022, medication abortions have become a critical tool in abortion advocates’ efforts to expand access to people in states with barriers to access. In 2023, over 1 million abortions took place in the formal U.S. healthcare system — with more than 60% using the abortion pill. The percentage of medication abortions has risen 10% since 2020.

The FDA originally approved mifepristone in 2000, but the drug has earned additional approvals to ease barriers to its access. In 2016, the FDA extended the drug’s use further into pregnancy and allowed non-physicians to prescribe the medication. The agency also limited the number of appointments needed to obtain the pill.

The Covid-19 pandemic pushed the agency to allow mifepristone to be prescribed via telehealth visits. As the pandemic waned, the FDA determined that virtual prescription of the drug was safe and allowed the practice to continue.

Shortly after Roe was overturned, an association of conservative doctors took a shot at removing medication abortion from the market. The Alliance for Hippocratic Medicine claimed that the drug’s 2000 approval was flawed, leaving emergency room doctors burdened with adverse reactions. The doctors themselves do not prescribe the drug.

Mifepristone’s safety record rivals drugs like penicillin and Viagra; it is also 14 times safer than childbirth. The anti-abortion doctors said their own evidence contradicted the evidence-based studies accepted by leading medical authorities.

U.S. District Judge Matthew Kacsmaryk, a Donald Trump appointee in Texas, sided with the conservative doctors, ruling to remove mifepristone from shelves nationwide. Kacsmaryk said the FDA’s approval of the drug put women in serious or life-threatening danger. He made his conclusion in part by reviewing a study of anonymous blog posts. Two other studies Kacsmaryk cited were later retracted.

The Fifth Circuit used the same evidence to uphold parts of Kacsmaryk’s ruling. The appeals court revoked mifepristone’s 2016 and 2021 approvals, strictly limiting access to the pill but not throwing it out completely.

The conservative doctors struggled to convince the justices that their shaky standing theory represented real harm during oral arguments in March. Erin Hawley, an attorney with the Alliance for Defending Freedom representing the doctors, even mistakenly misstated the number of women harmed by mifepristone.

U.S. Solicitor General Elizabeth Prelogar told the court that there wasn’t one doctor willing to submit a sworn declaration that mifepristone led to the claimed injuries — a fact that she said demonstrated that the harm hadn’t happened.

Persuaded by these arguments, the court dismissed claims about mifepristone patients flooding emergency rooms. Kavanaugh said the doctors’ evidence of this claim was highly speculative and lacked support. 

“In any event, and perhaps more to the point, the law has never permitted doctors to challenge the government’s loosening of general public safety requirements simply because more individuals might then show up at emergency rooms or in doctors’ offices with follow-on injuries,” Kavanaugh wrote. 

The court said creating a new doctrine just for doctors to challenge medications would be impossible without opening the floodgates for many other groups.

“Firefighters could sue to object to relaxed building codes that increase fire risks,” Kavanaugh wrote. “Police officers could sue to challenge a government decision to legalize certain activities that are associated with increased crime. Teachers in border states could sue to challenge allegedly lax immigration policies that lead to overcrowded classrooms.”

Federal law protects doctors from performing procedures that violate their beliefs. Kavanaugh said even if changes to mifepristone’s approval did result in more emergency room visits at hospitals where these conservative doctors worked, they could use the so-called conscience objections to avoid providing abortion care. But the court said there was no evidence that the doctors’ conscience objections were violated. 

The court briefly touches on another abortion case on the docket this term. When discussing conscience objections, Kavanaugh rejected claims that the Emergency Medical Treatment and Labor Act — which requires hospitals to provide health care to emergency room patients — would override federal protections for doctors’ beliefs. 

“Federal law fully protects doctors against being required to provide abortions or other medical treatment against their consciences — and therefore breaks any chain of causation between FDA’s relaxed regulation of mifepristone and any asserted conscience injuries to the doctors,” Kavanaugh wrote. 

Justice Clarence Thomas wrote a concurring opinion to object to third-party standing claims generally. The George W. Bush appointee said plaintiffs should not be able to use another person’s injury to establish cause of a lawsuit. Thomas said association standing, as the Alliance for Hippocratic Medicine attempted to claim, is just another form of third-party standing. 

Abortion rights advocates said the ruling was a temporary reprieve from attacks on reproductive health. 

“Thank goodness the Supreme Court unanimously rejected this unwarranted attempt to curtail access to medication abortion, but the fact remains that this meritless case should never have gotten this far,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement. 

The court’s ruling focused solely on the doctors’ ability to challenge mifepristone. Kansas, Missouri and Idaho — which were able to intervene in the lower court — could still try to advance their case against abortion drugs. 

Follow @KelseyReichmann
Categories / Appeals, Health

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