Access to Abortion Pill Remains under Supreme Court Decision in Food and Drug Administration v. Alliance for Hippocratic Medicine

On June 13, 2024, the Supreme Court delivered a crucial ruling in the case of Food and Drug Administration v. Alliance for Hippocratic Medicine, maintaining the availability of mifepristone, a key drug used in medication abortions. The unanimous decision determined that the plaintiffs, a group of anti-abortion doctors and medical organizations, lacked the legal standing to challenge the FDA’s decisions to expand access to the drug in 2016 and 2021.

Background of the Case

The controversy began when several doctors and medical groups, opposing abortion on religious or moral grounds, challenged the FDA’s approvals and expanded access to mifepristone. These expansions included permitting the drug’s use up to the 10th week of pregnancy, allowing non-physicians to prescribe it, and enabling prescriptions without an in-person visit.

In 2020, U.S. District Judge Matthew Kacsmaryk ruled in favor of the challengers, citing “legitimate safety concerns” and suspending the FDA’s approvals. The FDA and the drug’s manufacturer, Danco, appealed to the U.S. Court of Appeals for the 5th Circuit, which partly upheld Kacsmaryk’s ruling but found the challenge to the FDA’s initial approval of the drug to be too late.

The Supreme Court’s decision now overturns the 5th Circuit’s ruling, continuing the availability of mifepristone and sending the case back to the lower courts.

Legal Standing: A Fundamental Barrier

Chief Justice Brett Kavanaugh, writing for the court, emphasized the constitutional doctrine of standing. Quoting the late Justice Antonin Scalia, Kavanaugh reiterated that a plaintiff must demonstrate a direct injury caused by the defendant’s actions. The challengers argued that the FDA’s expanded access policies would harm them by potentially requiring them to provide emergency treatment to women who experience complications from the drug, thus diverting resources and increasing liability risks.

However, Kavanaugh dismissed these claims as too speculative. He pointed out that federal laws protect doctors from being compelled to perform abortions or related treatments against their consciences, and there was no evidence presented of any doctor being forced to provide such care. Furthermore, Kavanaugh noted that accepting such speculative harm as a basis for standing would open the floodgates to numerous lawsuits against almost any public health policy.

Associational Standing Rejected

The court also addressed the concept of associational standing, where an organization sues on behalf of its members. The medical groups argued that their efforts to oppose the FDA’s actions—by conducting studies and submitting petitions—constituted a sufficient injury. The court disagreed, stating that spending resources to oppose a government policy does not establish a direct injury that grants standing to sue.

Justice Clarence Thomas, while concurring with the majority, expressed a desire to reconsider the doctrine of associational standing altogether, questioning its alignment with constitutional principles.

Implications for Abortion Access

The Supreme Court’s ruling ensures that mifepristone remains widely available in the United States, where it is used in over 60% of medication abortions. However, the decision does not preclude future challenges to the FDA’s policies. The case is now back in the lower courts, and states like Idaho, Missouri, and Kansas, which joined the dispute, may continue to press their challenges.

Erin Hawley, who argued the case for the challengers, indicated that the states involved would continue their legal battle. Meanwhile, Nancy Northrup of the Center for Reproductive Rights lauded the decision but warned that access to mifepristone remains at risk, noting that further attempts to restrict the drug could still emerge.

The Broader Context: Post-Dobbs Landscape

This ruling comes nearly two years after the Supreme Court’s landmark decision in Dobbs v. Jackson Women’s Health Organization, which overturned the constitutional right to abortion established by Roe v. Wade. Following Dobbs, 21 states have enacted laws banning or severely limiting abortion access, intensifying the national debate over reproductive rights.

The Supreme Court’s decision in Food and Drug Administration v. Alliance for Hippocratic Medicine underscores the complexity of balancing regulatory authority, individual rights, and public health. While the court’s ruling ensures continued access to a critical reproductive health medication, it also highlights the ongoing legal and political battles over abortion in the United States.

Looking Forward

As the case returns to the lower courts, and with other related cases pending, the landscape of reproductive rights remains dynamic and contentious. The Supreme Court’s decision provides a temporary reprieve for access to mifepristone, but the broader struggle over abortion rights continues to evolve.

In summary, the Supreme Court’s ruling affirms the principle that plaintiffs must demonstrate a concrete injury to challenge government policies, ensuring that mifepristone remains accessible while leaving open the possibility of future legal challenges. This decision is a pivotal moment in the ongoing national discourse on reproductive rights, emphasizing the intricate interplay between legal standing, public health policy, and individual freedoms.

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