This week the U.S. Supreme Court heard oral arguments for a case that could not only overturn the U.S. Food and Drug Administration’s authorization of the abortion pill mifepristone but also open the door for the courts to question decisions made by government agencies.
Even the justices appointed by former President Donald Trump appeared to question the Alliance Defending Freedom’s (ADF) standing. The ADF brought the case on behalf of anti-abortion doctors and medical associations that want to reduce the circulation of mifepristone, especially through means that allows to drug to be self-administered. Overturning the FDA’s decision to relax rules on the drug’s administration would require the drug to be administered in-person by a presiding physician.
But the majority of justices appeared to push back on the idea that the ADF’s clients were personally harmed by the relaxed rules. According to the Wall Street Journal, through questioning they discovered that no federal law can compel a physician to provide an abortion, including the Emergency Medical Treatment and Labor Act (EMTALA), which Biden administration Solicitor General Elizabeth Prelogar noted applied only to hospitals and not individual providers.
We think that federal conscience protections provide broad coverage here.
The Washington Post notes that the Biden administration was joined by pharmaceutical companies in pre-hearing briefs that warned the court to allow the FDA authority on scientific judgements as a ruling against the agency could destabilize the entire regulatory system and jeopardize research. The attorney for mifepristone manufacturer Danco Laboratories stressed the distance between the plaintiffs and those that the ruling would affect:
[The ADF’s clients] do not use this product, do not prescribe this product, and have a conscience right to not treat anyone who has taken this product. Those individuals want to prevent anyone else from using it in line with the FDA’s considered scientific judgement.
The number of people who use the product may not include those physicians, but they do include a growing number of women across the country. The New York Times reports that in the six months after the overturn of Roe v. Wade in June 2022, sales of abortion pills from overseas and online vendors quadrupled. From Dr. Abigail Aiken, associate professor at the University of Texas and the lead author of the JAMA study:
We see what we see elsewhere in the world in the U.S. — that when anti-abortion laws go into effect, oftentimes outside of the formal health care setting is where people look, and the locus of care gets shifted.
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