The Supreme Court heard oral arguments Tuesday morning in a case concerning the Food and Drug Administration’s (FDA) recently loosened restrictions on the administration of mifepristone, a drug used in medication-induced abortions.
This was the first time that the Court has heard an abortion-related case since overturning Roe v. Wade in 2022.
Much of the discussion Tuesday focused not on the merits of the case, but rather on the issues of standing and the scope of relief being sought by the challengers.
According to the FDA’s website, mifepristone “blocks a hormone called progesterone that is needed for a pregnancy to continue.”
“Mifepristone, when used together with another medicine called misoprostol, is used to end a pregnancy through ten weeks gestation,” the FDA explains.
Mifepristone was first approved by the FDA in 2000 for use in medication abortions up to seven weeks into a pregnancy. This time frame was extended to ten weeks in 2016.
In 2023, the FDA announced that it would make permanent a COVID-era policy lifting the requirement that mifepristone be administered to women in person at a clinic or hospital, or under the supervision of a certified medical professional.
The removal of this requirement allowed the abortion drug to be obtained by women at a retail pharmacy or through the mail via telemedicine.
The doctors challenging these updated regulations contend that they are harmed when they are faced with treating patients experiencing complications associated with the un-monitored use of mifepristone, as it requires them to “participate in a process that facilitates abortions.”
The Fifth Circuit’s ruling in this case, if upheld, would roll back the 2016 and 2023 expansions, meaning that once again, the prescription would only be allowed through seven weeks of pregnancy and in-person administration of the abortion drug would be required.
In February, Maine Attorney General Aaron Frey signed onto an amicus brief, alongside twenty-three other governors, urging the Court to allow these relaxed regulations to stand.
Solicitor General Elizabeth Prelogar — arguing on behalf of the FDA — suggested Tuesday before the Court that her opponents’ case “rests on chain of remote possibilities,” contending that a very specific chain of events would need to occur in order for harm to occur.
Consequently, Solicitor General Prelogar argued, there is a “profound mismatch” between the expressed fear of harm and the “sweeping nationwide relief” being sought in response.
Throughout Tuesday’s oral arguments, the Justices continually probed the question of whether or not the challengers had sufficient standing to bring a case against the FDA for their relaxed regulations.
Early on in the proceedings, however, Justice Samuel Alito pressed the Solicitor General to explain who — if not those in this case — could “challenge the lawfulness of what the FDA did,” to which she responded that “it’s hard to identify anyone who would have standing to sue.”
“So your argument is that it doesn’t matter if FDA flagrantly violated the law,” said Justice Alito, “it didn’t do what it should have done, endangered the health of women, it’s just too bad nobody can sue in court?”
The Solicitor General responded by arguing that the “FDA takes very seriously its
responsibility to ensure the safety of drugs,” but that the “drug sponsors themselves
remain responsible at all times,” and “we have a tort system in this country, and that can help ensure that if there are safety problems that come to pass, the sponsors will take action in reaction to that.”
The Justices also referred to doctors’ existing right to raise “conscious objections” with respect to the provision of care that conflicts with their moral convictions, allowing them to effectively opt out of engaging with such procedures, questioning why this does not provide sufficient relief.
In response, Erin Hawley — Senior Counsel for Alliance Defending Freedom — argued that the emergency nature of the situations that can be caused by the unsupervised use of mifepristone do not provide an adequate opportunity for doctors to do so.
“Ruling against Respondents on standing here would allow federal agencies to conscript
non-regulated parties into violating their consciences and suffering other harm without
judicial recourse,” Hawley argued.
Justice Neil Gorsuch also raised concerns that “this case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule or any other federal government action.”
Justice Gorsuch noted that those challenging the FDA’s relaxed regulations are asking the Court “to extend and pursue this relatively new remedial course” to remedy their concerns.
Chief Justice John Roberts then asked Hawley why relief could not be more precisely directed to the parties in this case — as opposed to the FDA’s regulation of mifepristone more broadly — to which Hawley responded that it would be “impracticable” and “inconsistent with equity” to have the FDA enforce different regulations in different localities.
As of now, it is not clear when the Justices will release their opinion for the case heard Tuesday, but all opinions are typically handed down before the Court recesses for the summer.
According to the Supreme Court’s website, unanimous decisions are typically released quickly, while those that generate a number of dissenting and concurring opinions may not be released until the last day of the term.
The white race is contracepting and aborting itself out of existence. Along with the brown invasion across the southern border whites will be a minority in a couple of generations. The US is looking more like the Roman empire circa 250AD every year.