Freethought NOW!

The Supreme Court created a mess and it may try to find a way out

Print Friendly, PDF & Email
A photo of Mifepristone on the table

Tomorrow, March 26, the U.S. Supreme Court is set to hear arguments in the case FDA v. Alliance for Hippocratic Medicine. The court will determine whether the religious beliefs of a group of plaintiffs trump FDA regulations adopted in 2016 and 2021 concerning mifepristone, which is used for medication abortion.

Troublingly, it is a good thing that the Supreme Court has taken this case. Last August, the 5th U.S. Circuit Court of Appeals upheld an injunction restricting mifepristone. The appeals court ruling would have limited abortion medication to just seven weeks of gestation, and also banned telemedicine and mail-order shipments of the medication. The only way to undo the terrible ruling from the 5th Circuit was for the Supreme Court to take the case — which it did.

As the Freedom From Religion Foundation’s amicus brief before the Supreme Court pointed out, the suit was manufactured from the outset by religious groups and the plaintiffs who are suing the FDA. They do not actually have legal standing. Their claimed injuries are hypothetical and anti-abortion advocates are not the proper party to litigate the FDA’s scientific assessment of the efficacy and safety of abortion medications.

The Supreme Court set the table for maneuvers like this case when it overturned Roe v. Wade with its Dobbs decision in June 2022. Lower court judges understand that the federal judiciary no longer protects reproductive rights. And as we all have observed, religious litigants are “the golden child” of this Supreme Court. The Dobbs ruling encouraged the ultrareligious U.S. District Judge Matthew Kacsmaryk to issue his outrageous nationwide ban against mifepristone on the evening of Good Friday 2023. That ruling was later narrowed by the 5th Circuit because the plaintiffs had waited too long to sue over the drug’s initial approval.

Mifepristone was first approved by the FDA in 2000, and the federal government gradually made the drug more accessible. Access to the medication is critical. Abortion medication accounted for 63 percent of all abortions in the United States in 2023, according to the Guttmacher Institute.

We will get some hints about how the justices view this case tomorrow. I expect that many of the justices don’t actually want to take cases like this. Maybe a majority of the justices thought that repealing Roe v. Wade would somehow resolve all legal issues surrounding abortion. That was naive, if not outright delusional. The court is also set to hear another case about access to abortion on April 22, Moyle. v. United States.

I suspect that some justices, such as Chief Justice John Roberts and Justice Brett Kavanaugh, may try to find an escape hatch. In this case, that could mean the court will actually hold the religious plaintiffs to the same standards as other plaintiffs when it comes to legal standing.

Besides that escape hatch, the justices might also defer to the FDA on medical questions. I know this sounds like a radical idea. But we know that many of the justices have no problem with playing doctor when it suits them. When overturning Roe, the majority of justices wrote that it was best to defer to legislatures “in areas fraught with medical and scientific uncertainties.” Will those same justices defer to the FDA when it comes to medical and scientific judgments surrounding abortion medications?

I hope the court realizes that without any injury to the anti-abortion advocates who are suing, their case should be tossed in its entirety. We will soon find out if the justices are willing to discuss that option.

FFRF attorneys Patrick Elliott, Liz Cavell and Sammi Lawrence will break down the court’s arguments on FFRF’s “Ask an Atheist” on Wednesday, March 27, at noon Central on Facebook Live and then repeated at 7 p.m. on FFRF’s YouTube channel.

Please share this article:

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.