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Supreme Court Delivers Unanimous Procedural Ruling on Abortion Drugs

Mary Margaret Olohan : Jun 13, 2024  The Daily Signal

"Women should have the ongoing care of a doctor when taking high-risk drugs. The FDA betrayed women and girls when it removed the necessary in-person doctor visits that protected women's health and well-being." -ADF senior counsel Erin Hawley

[] The US Supreme Court ruled Thursday that pro-life doctors do not have standing to challenge the Food and Drug Administration's removal of safety restrictions on abortion drugs. (Image: iStock-Carl Lokko)

The court issued a unanimous ruling in two combined cases that deal with the FDA's regulation of abortion drugs, FDA v. Alliance for Hippocratic Medicine and Danco Laboratories LLC v. Alliance for Hippocratic Medicine.

Justice Brett Kavanaugh delivered the opinion of the Court, in which he wrote that even though the plaintiffs have "sincere legal, moral, ideological, and policy objections to elective abortion and to the FDA's relaxed regulation of mifepristone," because they do not prescribe or use the abortion drug mifepristone, and the FDA is not requiring them to "do or refrain from doing anything," "the plaintiffs lack standing to challenge FDA's actions."

"In 2016 and 2021, the Food and Drug Administration relaxed its regulatory requirements for mifepristone, an abortion drug," the justice said. "Those changes made it easier for doctors to prescribe and pregnant women to obtain mifepristone."

"Several pro-life doctors and associations sued FDA, arguing that FDA's actions violated the Administrative Procedure Act," he continued. "But the plaintiffs do not prescribe or use mifepristone. And FDA is not requiring them to do or refrain from doing anything."

"Rather, the plaintiffs want FDA to make mifepristone more difficult for other doctors to prescribe and for pregnant women to obtain," Kavanaugh wrote. "Under Article III of the Constitution, a plaintiff 's desire to make a drug less available for others does not establish standing to sue. Nor do the plaintiffs' other standing theories suffice. Therefore, the plaintiffs lack standing to challenge FDA's actions."

Justice Clarence Thomas emphasized in his concurring opinion that the ruling is all about standing, noting that the opinion is in line with his dissent in June Medical Services v. Russo.

"Just as abortionists lack standing to assert the rights of their clients, doctors who oppose abortion cannot vicariously assert the rights of their patients," he wrote. (Screengrab image)

The Alliance for Hippocratic Medicine is a group of medical professionals committed to upholding "the fundamental principles of Hippocratic medicine," including "protecting the vulnerable at the beginning and end of life, seeking the ultimate good for the patient with compassion and moral integrity, and providing health care with the highest standards of excellence based on medical science."

These medical professionals were represented by Alliance Defending Freedom (ADF).

"Women should have the ongoing care of a doctor when taking high-risk drugs," ADF senior counsel Erin Hawley, who argued the case before the Supreme Court, said in March. "The FDA betrayed women and girls when it removed the necessary in-person doctor visits that protected women's health and well-being."

"The FDA's own label for abortion drugs says that roughly one in 25 women who take them will end up in the emergency room," added Hawley, who is married to Sen. Josh Hawley, R-MO "Yet, the government continues to defend its reckless actions that jeopardize women's health and safety."

The drug central to the case is the abortion drug mifepristone, first approved by the FDA in 2000 as part of a two-part drug combo with misoprostol to abort babies very early on in pregnancy.

The FDA had formerly required a slew of safety restrictions, such as requiring that only a doctor could dispense mifepristone, that the mother would have to get the abortion drugs in person, and that the mother could only abort her baby using abortion drugs up until the seventh week of pregnancy.

Moms also would have to make three visits to the doctor to get the drugs: the first to take mifepristone, the second to take misoprostol, and the third to confirm that the baby was dead.

In 2016, the FDA eliminated requirements for the doctors who prescribe mifepristone to report "adverse events," or nonfatal complications that ensued from the abortion drugs—meaning, that unless a mother dies, the abortionists don't have to report complications from the drugs.

ADF has argued that that further obscures "the truth" about abortion drugs.

Also in 2016, the FDA also reduced the number of required doctor's office visits for women getting abortion drugs from three to one, and it stopped requiring doctors prescribe the abortion drugs.

And in 2021, the FDA stopped requiring that abortion drugs be dispensed to mothers in person, which allowed women to receive them through telehealth appointments and by mail—though the agency had explicitly warned that abortion drugs should not be purchased over the internet "because they will bypass important safeguards designed to protect their health." (That language has since been removed from the FDA's website.)

The ruling comes just short of two years after the Supreme Court ruled, in Dobbs vs. Jackson Health Women's Organization, the overturning of Roe v. Wade in June 2022.

In a statement following the decision, Heritage Foundation legal fellows Thomas Jipping and Melanie Israel emphasized that the decision is "not the final judgement on the safety or effectiveness of mifepristone."

"While legal technicalities might allow Biden's FDA to continue manipulating its safety rules to push a pro-abortion agenda at the expense of health and common sense, women and girls taking these chemical abortion drugs are still in danger and largely left to fend for themselves," Jipping and Israel said.

They added: "Policymakers should be on the side of women's safety by, at a minimum, demanding that the FDA follow its own original safety guidelines, not give abortion drugs a pass because of radical abortion ideology." Subscribe for free to Breaking Christian News here

Mary Margaret Olohan is a senior reporter for The Daily Signal and the author of "Detrans: True Stories of Escaping the Gender Ideology Cult." She previously reported for both The Daily Caller and The Daily Wire.

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