Limited victory for abortion rights

The US Supreme Court unanimously allowed the use of the abortion medication mifepristone.

The nine justices ruled that abortion opponents lacked the legal right to sue over the federal Food and Drug Administration’s approval of the medication, mifepristone, and the FDA’s subsequent actions to ease access to it. The case had threatened to restrict access to mifepristone across the country, including in states where abortion remains legal.

Abortion is banned at all stages of pregnancy in 14 states, and after about six weeks of pregnancy in three others, often before women realize they’re pregnant.

Kavanaugh’s opinion managed to unite a court deeply divided over abortion and many other divisive social issues by employing a minimalist approach that focused solely on the technical legal issue of standing and reached no judgment about the FDA’s actions. Kavanaugh’s seven “pro-life” references to abortion opponents may have been the only language in his opinion that revealed anything of his views on abortion.

About two-thirds of U.S. adults oppose banning the use of mifepristone, or medication abortion, nationwide, according to a KFF poll conducted in February. About one-third would support a nationwide ban.

More than 6 million people have used mifepristone since 2000. Mifepristone blocks the hormone progesterone and primes the uterus to respond to the contraction-causing effect of a second drug, misoprostol. The two-drug regimen has been used to end a pregnancy through 10 weeks gestation.

The justices did not rule on the merits of the FDA’s powers but instead sidestepped that question and ruled that the doctors who brought the lawsuit did not have standing to sue.

Federal laws already protect doctors from having to perform abortions, or give any other treatment that goes against their beliefs, Kavanaugh wrote. “The plaintiffs have not identified any instances where a doctor was required, notwithstanding conscience objections, to perform an abortion or to provide other abortion-related treatment that violated the doctor’s conscience since mifepristone’s 2000 approval,” he wrote.

The decision that the doctors don’t have the legal right to sue leaves open the way for lawsuits from others, including three other states that Kacsmaryk had previously allowed to join the case, said Erin Hawley, an attorney for the group Alliance Defending Freedom.

You can be sure that anti-abortion zealots will try and find ways to bring the case before the courts, by figuring out some way to get past the standing issue.

You can read the opinion here. In it, Kavanaugh says that the arguments that were put forward to establish standing lacked merit. When you read the kinds of scenarios that they proposed, you realize the desperation that failed to move even a court that seems opposed to abortion rights.

Plaintiffs are pro-life, oppose elective abortion, and have sincere legal, moral, ideological, and policy objections to mifepristone being prescribed and used by others. Because plaintiffs do not prescribe or use mifepristone, plaintiffs are unregulated parties who seek to challenge FDA’s regulation of others. Plaintiffs advance several complicated causation theories to connect FDA’s actions to the plaintiffs’ alleged injuries in fact. None of these theories suffices to establish Article III standing.

Plaintiffs first contend that FDA’s relaxed regulation of mifepristone may cause downstream conscience injuries to the individual doctors. Even assuming that FDA’s 2016 and 2021 changes to mifepristone’s conditions of use cause more pregnant women to require emergency abortions and that some women would likely seek treatment from these plaintiff doctors, the plaintiff doctors have not shown that they could be forced to participate in an abortion or provide abortion-related medical treatment over their conscience objections. Federal conscience laws definitively protect doctors from being required to perform abortions or to provide other treatment that violates their consciences.

Plaintiffs next assert they have standing because FDA’s relaxed regulation of mifepristone may cause downstream economic injuries to the doctors. The doctors cite various monetary and related injuries that they will allegedly suffer as a result of FDA’s actions—in particular, diverting resources and time from other patients to treat patients with mifepristone complications; increasing risk of liability suits from treating those patients; and potentially increasing insurance costs. But the causal link between FDA’s regulatory actions in 2016 and 2021 and those alleged injuries is too speculative, lacks support in the record, and is otherwise too attenuated to establish standing. Moreover, 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. Citizens and doctors who object to what the law allows others to do may always take their concerns to the Executive and Legislative Branches and seek greater regulatory or legislative restrictions.

The anti-abortion zealots brought this case in the U. S. District Court for the Northern District of Texas because the sole judge there is a notoriously extreme conservative whom they knew would rule to ban the drug nationwide, which he duly did. They will likely go back to that court with a revised case that they think will enable them to get past the standing issue.

But for now the use of the drug is protected, which is something to celebrate. A ban on it would have been devastating.

Leave a Reply

Your email address will not be published. Required fields are marked *