The Supreme Court gave cold comfort to arguments in favor of a nationwide ban on dispensing the abortion pill mifepristone (aka RU-486) on Tuesday, March 26th.
The Alliance for Hippocratic Medicine is a faith-based group for pro-life healthcare providers. They won a remarkable victory in a Texas federal district court in 2022, challenging the FDA's approval of abortion pill mifepristone from 2000 and the agency's 2016 decision to allow it to be prescribed without a doctor visit. The judge, a Trump appointee, issued a staggering nationwide injunction suspending the FDA's approval of the drug. It was something no court had ever done before and one likely to be permanently cast aside in FDA v. Alliance for Hippocratic Medicine.
Abortion Pill Case Not About Abortion
While the case revolves around a ban on the surgical abortion drug, the arguments at the Court chiefly involved legal standing and FDA regulations. This is not likely to be seen as part of the Roe to Dobbs legacy but rather an outlier by the country's farthest right judicial circuit. A plain reading of the room would lead a disinterested observer to conclude justices will overturn the ban in favor of the FDA.
The Supreme Court had granted an injunction against the district court order until all appeals were made. The Alliance then won on appeal at the Fifth Circuit. This Tuesday, the nationwide injunction received a most skeptical reception from the Supreme Court, including from the conservative side. The Alliance case faces many legal hurdles to success, adding up to the unlikely approval of five or more justices voting to allow the ban.
Losing Justice Gorsuch
Justice Neil Gorsuch has spoken out from the bench on numerous cases against nationwide injunctions when not required. Those instances have been at the hands of activist progressive jurists, who ruled against Trump administration policies in the broadest possible terms. Gorsuch did not hold back when the shoe was on the conservative foot. He told the Alliance's attorney he had looked at the historical record, and "there are exactly zero universal injunctions that were issued during Franklin Delano Roosevelt's 12 years in office, pretty consequential ones. And over the last four years or so, the number is something like 60 and -- maybe more than that, and they're -- they're a relatively new thing."
One of the many problems with the case is the plaintiffs' standing. A key component to seeking relief in a challenge like this is showing they were injured and can trace that injury to the provision they challenge. Here, doctors argue they have a conscientious objection to performing abortions and may be forced to do so if a patient took mifepristone if that patient visited an emergency room, if one of these doctors was practicing, and if they had to complete the procedure due to a life-threatening time crunch. It's a tenuous connection at best and one not likely to survive judgment at the Supreme Court.
Justice Amy Coney Barrett exposed the injury question as purely hypothetical and that the Dr. plaintiff never alleged she was forced to perform an abortion procedure. Justice Sonia Sotomayor joined Barrett and Ketanji Brown Jackson in hammering this point. These doctors have never been forced to perform an abortion against their will. The long string of hypothetical occurrences required to see such an eventuality seems unlikely to move these justices to agree a nationwide ban on the abortion pill may be implemented. Barrett said:
"And as I read her allegations or her -- as her affidavit reads, she said that her partner was forced to perform a D&C when there was a living fetus, and she said she performed a D&C on a woman who was suffering serious complications, but the fact that she performed a D&C does not necessarily mean that there was a living embryo or a fetus because you can have a D&C after, you know, a miscarriage."
Justice Samuel Alito seemed to stand alone as a defender of the lower court decision to forbid this medication from being dispensed. He authored the Supreme Court's 2022 Dobbs v. Jackson Women's Health Organization case, overturning Roe v. Wade. After impugning the company's profit motive, Alito asked a lawyer for the drug manufacturer, "Do you think the FDA is infallible?" and "Has the FDA ever approved a drug and then pulled it after experience showed that it had a lot of really serious adverse consequences?"
Shortly thereafter, Justice Jackson challenged Alito with her question to the attorney "So you were asked if the agency is infallible, and I'm -- I guess I'm wondering about the flip side, which is do you think that courts have specialized scientific knowledge with respect to pharmaceuticals, and as a company that has pharmaceuticals, are -- do you have concerns about judges parsing medical and scientific studies?" Both sets of questions answer themselves and reveal more about the Justice asking than any response.
According to a statistic from the pro-choice Guttmacher Institute and cited by the Court, 650,000 women take the abortion pill mifepristone every single year. The Court is expected to issue its ruling in FDA v. Alliance for Hippocratic Medicine before they break for the summer.
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