The Supreme Court rejected a bid for more restrictions on the drugs for medication abortions, ruling against a group that included pro-life Christian doctors.
The doctors had argued that one drug, mifepristone, was unsafe, and that the US Food and Drug Administration (FDA) failed to uphold proper procedure when it relaxed regulations to obtain the drug by mail and at later stages in pregnancy. Assisting patients suffering complications from the medication would be against pro-life doctors’ consciences.
Drug abortions constitute more than 60 percent of abortions in the US and have grown in popularity since the Supreme Court overturned Roe v. Wade.
The court ruling was unanimous but on narrow grounds, holding that the doctors lacked standing, or the legal right to sue, because they were not the ones harmed by the drugs.
Justice Brett Kavanaugh, a Trump appointee, wrote for the majority. He acknowledged that the doctors are “pro-life, oppose elective abortion, and have sincere legal, moral, ideological, and policy objections to mifepristone” but said that they had not proved they would be harmed by the current regulations around the abortion drug.
“Under Article III of the Constitution, a plaintiff’s desire to make a drug less available for others does not establish standing to sue,” he said. “The plaintiff doctors and medical associations do not prescribe or use mifepristone. And the FDA has not required the plaintiffs to do anything or to refrain from doing anything.”
Kavanaugh noted that existing federal laws would “protect doctors from being required to perform abortions” or act in other ways that would run afoul of their consciences.
One of the doctors who was party to the case, Christina Francis, CEO of the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG), told CT in a March interview that the pro-life movement has work to do in countering the argument that “abortion is good for [women].”
There are “a myriad of immediate complications that [abortion] can cause,” she said. “The abortion pill, which is now being pushed on women in really unsafe ways, causes a host of complications.”
Francis, a Christian, told CT Thursday in an email statement, “As an organization dedicated to serving both our maternal and pre-born patients, we are deeply alarmed that the FDA’s recklessness is permitted to continue unchecked, risking the lives and health of women across this country.”
AAPLOG represents over 7,000 physicians. Other groups party to the case included several individual doctors, who object to abortion for religious or moral reasons, and several pro-life medical groups, including Christian and Catholic organizations.
In the case, the doctors argued they may have to treat a woman who had taken mifepristone and suffered complications that would require an emergency room visit. That may require a physician with a conscience objection on religious or moral grounds to assist with an abortion.
During oral arguments, the Biden administration countered that the argument “rest[s] on a long chain of remote contingencies … and even if that happened, federal conscience protections would guard against the injury the doctors face.” Alliance Defending Freedom attorneys, who brought the case, noted that, according to the FDA, between 2.9 and 4.6 percent of women taking the drug end up in the emergency room.
Alliance Defending Freedom attorneys also argued the case that overturned the right to an abortion nationwide established by Roe v. Wade.
Mifepristone, also known by its brand name Mifeprex, was approved in 2000 by the FDA as a way to administer chemical abortions during early stages of pregnancy. In 2016, the FDA held that Mifeprex could be used for abortions at 10 weeks gestation and allowed health care providers to prescribe it. The FDA also required, at that time, one in-person visit to receive the medication. In 2021, the FDA announced it would no longer require the in-person visit.
Pro-life organizations have long (unsuccessfully) petitioned the FDA to reconsider its approval of abortion drugs. The doctors asked a district court judge to pull back the expanded access to the drug and to rescind the FDA’s approval of the drug entirely.
The district court sided with the doctors and suspended the drug’s approval and its expanded availability in 2016 and 2021. The US Court of Appeals for the Fifth Circuit partially reversed the lower court ruling, but it upheld the part that clamped down on expanded access to the drug.
The Supreme Court put the ruling on hold, allowing women to continue obtaining abortion drugs. Thursday’s decision, FDA v. Alliance for Hippocratic Medicine, sent the case back to the lower courts.
The ruling left pro-life advocates “disappointed,” but advocates said they would continue to challenge the availability of abortion drugs in the country.
Jeanne Mancini, president of March for Life, said in an email statement that the organization will “continue to educate and advocate on the need for commonsense protections when it comes to women’s health and well-being and defending the most vulnerable.”
“New legal challenges may emerge, and the ERLC will look for opportunities to engage,” Brent Leatherwood, president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, stated. “We all should be resolute in our efforts to elect leaders and support legislative solutions that protect innocent lives and defend mothers against the predatory abortion industry.” Students for Life of America president Kristan Hawkins, whose organization filed an amicus brief in the case, said in a statement that the ruling “is not the end of this case.”
