Supreme Court to Decide Whether Abortion Pill Should Be Banned

UPDATE: March 26: The Court looks likely to find, as we said in this article, that "Anti-abortion groups and doctors not harmed themselves, purporting to represent other unnamed doctors, hardly establishes standing to sue, not least because none of the plaintiff doctors have ever prescribed mifespristone themselves." In other words, that the Court will discard the suit on the grounds that the plaintiffs had no standing to sue seems assured.
But the conservatives on the bench showed unusual interest in the otherwise forgotten Comstock Act of 1873 which prohibits a number of freedoms such as sending though the mails whatever contraceptives and abortifacients existed then. That suggests we will be hearing from the Court in time.
    
In April a year ago, a federal judge in Texas suspended the Food and Drug Administration's approval of mifepristone, the "abortion pill". The FDA had overlooked "legitimate safety concerns", said the judge, notwithstanding that the pill has been used safely by millions of women in all the years since the agency approved the medication 24 years ago.

Immediately following, in a case brought by attorneys general of 18 Democratic states, who argued that the FDA approval was "lawful and valid" and that the drug is "far safer than continuing a pregnancy", a Washington State federal court agreed and enjoined the FDA from reducing the availability of the drug. A stay has kept the drug available since.

In striking down Roe v. Wade, the Supreme Court meant to send all matters of abortion to the states for each to decide policy and create laws, but it falls to the highest court to resolve conflicting decisions by federal courts, and so, the nine justices are once again in the thick of the abortion wars. On March 26th they will hear arguments for and against the pill and are expected to render a decision in early summer that is likely to have incendiary reactions.

The Texas lawsuit against the FDA was brought by Alliance Defending Freedom (ADF), a conservative Christian legal advocacy group that works to outlaw abortion, curtail LGBTQ rights, and promote Christian practices in public schools and government. They argue that the FDA rushed the drug’s approval without properly studying its safety, which, even if true, has long since seen safety proven.

Based in Arizona, ADF went judge shopping and found Amarillo, where they were guaranteed to draw Matthew Kacsmaryk because there is only one federal judge in Amarillo and that is he. Formerly with a Christian law firm, Kacsmaryk has written that Roman Catholic doctrine on marriage, family, sexuality, abortion, and even contraception should become American law. Appointed to the federal bench by President Trump in 2019, the conservatives who proposed him knew Kacsmaryk was a sure thing to legislate their cause from the bench.

The Texas suit ordering the FDA to revoke its approval of mifepristone is weak. To begin with, there is a six-year statute of limitation to challenge the FDA in court; to overcome that, Judge Kacsmaryk claims the agency restarted the clock when in 2021 it eased some restrictions on the dispensing of the drugs.

Second, proof of injury is a threshold requirement to sue in federal court. The plaintiffs include a few doctors speaking on behalf of other doctors who, citing one, experienced "some of the most emotionally taxing work I have done in my career". Kacsmaryk's court argues that, "As a result of the FDA's failure to regulate this potent drug, these doctors have had to devote significant time and resources to caring for" women who experienced problems after taking mifespristone and the companion drug, misoprostol, and that they could suffer malpractice suits and heightened insurance costs in additional to "enormous stress and pressure".

Anti-abortion groups and doctors not harmed themselves, purporting to represent other unnamed doctors, hardly establishes standing to sue, not least because none of the plaintiff doctors have ever prescribed mifespristone themselves. And yet, the suit has gone forward even to the Supreme Court. Given the drugs' overwhelming safety record, attested to by more than a hundred studies, the cited harm is speculative and absent any reality.

The suit claims that the FDA acted in haste, all those years ago, that its decisions were "arbitrary and capricious" — key words for claiming violations of the Administrative Practices Act, which requires government to move judiciously and comprehensively in developing regulations. Judge Kacsmaryk claims the FDA "entirely failed to consider…any evaluation of the psychological effects" or "long-term medical consequences" of the drugs. Women who undergo abortions "often experience shame, regret, anxiety, depression, drug abuse, and suicidal thoughts", he wrote. This is a single judge attempting to decide for women universally, banning them from further use of a remedy that they have elected to use of their own volition.

A lawyer for the plaintiffs said in a statement that "the FDA put women in harm's way", that "the agency should be held accountable for its reckless actions", and that "chemical abortion drugs can cause serious and life-threatening complications to the mother, in addition to ending a baby's life" — disinformation entirely the reverse of the drug's safety record. Pregnancy itself is more hazardous than mifepristone, which studies show is linked to five deaths in a million users. That is four times lower than penicillin, ten times lower than Viagra, for example. Moreover, calling what has developed in the first 10 weeks of pregnancy — the time the FDA authorizes for use of medication abortion — a "baby" is either ignorance or a lie.

We had a go on the subject of abortion two years ago in "Can There Be a Middle Ground to End the Abortion Debate?". It went through the science of early weeks of pregnancy to show that there was nothing remotely suggestive of a baby or anything human until the end of the tenth week, when something begins to form. Subsequently, a year ago January, The New York Times published a series of uterine photos of those same weeks
Pregnancy in the ninth week.

that confirmed exactly what we had written. Shown the photos by her gynecologist, the patient, identified only as Jewel, said, "I thought you were going to bring in something that was shaped by a little fetus or something, and it was not that at all".

But that goes nowhere with those who espouse the figment that an actual person is created at the moment of conception. Or even earlier. Here's what the fervidly religious Mike Pence said — and in a campaign debate, no less…

"The sanctity of life proceeds out of the belief [in] that ancient principle where God says 'before you were formed in the womb I knew you.'"

You didn't know it but your pregnancy was God's plan. This is where the fanaticism of religion takes over and words such as "sacred" are invoked. It is the moment at when a cluster of cells becomes “ensouled” with no regard to what is actually happening physically in a woman's body.

Mifepristone latches onto receptor molecules in the uterus that are meant to receive progesterone, a hormone that maintains the uterus to receive and carry an embryo. The drug is usually followed 24 to 48 hours later by a second pill, misoprostol, which causes the uterus to contract and expel what has so far developed. The two medications are authorized for use in up to 10 weeks of pregnancy. Misoprostol, which is not included in the Texas suit and would therefore remain on the market even if mifepristone were outlawed, can cause an abortion on its own, but is 87% to 93% effective compared to the 95% to 99% score of mifepristone. The medications account for just over half of all abortions and has been used by millions of women. Its use has risen from 39% in 2017 to 53%.

That presents what may be an irresistible temptation for the conservative justices on the Supreme Court. Agreement to ban mifepristone nationwide would deliver a fatal blow to abortions, and overruling the FDA's approval of the drug would strike at the "administrative state" that those justices claim makes laws through regulation that should be the province of the legislative branch. They would get a twofer.

Nevertheless, it seems a certainty that the Court would not agree to Judge Kacsmaryk's order that the FDA withdraw its approval, given questionable standing and claims of harm that have no concordance with facts. Reversal of the FDA would be sure to invite lawsuits to overturn other approvals, feeding the extremist elements convinced of conspiracies, and damaging the efficacy of the agency charged with safeguarding the nation's medicines and foods. One need only think of the rightwing rebellion against COVID vaccines and the growing rejection of vaccines in general. The head of the American Medical Association warned that:

"The threat may ultimately include promising drugs and treatments built around stem cell technology to treat Parkinson's, Alzheimer's, multiple sclerosis."

It raises the specter of religious zealots with no medical knowledge using the courts to force their anti-science ideologies on the country.

The easiest path would be for the Court to follow the Roe decision, turning it back to each state to decide what to do about mifepristone and misoprostol.

But it is hard to think that the six conservative justices — five of them Catholic and a sixth educated in Catholic schools before becoming an Episcopalian — will pass up this opportunity to severely restrict access to the abortion pills.

Where will this lead? As became evident in the reversal of Roe v. Wade, the far right justices, especially Clarence Thomas and Samuel Alito, believe that Americans are not free. They have no inherent rights other than those specifically enumerated in the Constitution. Alito has openly evinced his dislike of Obergefell v. Hodges, the Court's decision in 2015 that allowed same-sex marriages. They are likely enthusiastic over Alabama's declaration of embryonic personhood that calls for the banning of in-vitro-fertilization. In their obsession with control of the female body as primarily meant to breed, like it or not, there have been intimations that outlawing contraceptives could be on the horizon. The future could get ugly.