Opinion: Mifepristone should win in the Supreme Court. But will that be the case?

Under the law, the case before the Supreme Court on Tuesday about the availability of drugs to induce abortions is simple: The Food and Drug Administration has the authority to make mifepristone available and later increase its availability. But as evidenced by the oral arguments in Food and Drug Administration vs. Alliance for Hippocratic Medicine, the outcome is anything but clear.

In 2000, the FDA approved mifepristone as part of a two-drug protocol to induce abortions. Last year, approximately 63% of all abortions in the US were medically induced using these drugs rather than performed surgically.

The number of medically induced abortions has increased since Roe vs. Wade was rejected in 2022. Especially in states that have banned virtually all abortions, a woman's ability to have an abortion by taking pills, which are available in a number of ways, has taken on enormous importance. Even in states like California, where abortion is legal, “drug abortions” represent a preferable, safe alternative to surgical procedures for many who seek abortions.

A conservative anti-abortion group has challenged the FDA's approval of mifepristone. An openly anti-abortion federal judge in Texas issued an order halting the distribution of mifepristone nationwide. As U.S. Solicitor General Elizabeth B. Prelogar noted during oral arguments Tuesday, this was the first time in history that a judge had overturned the FDA's approval of a drug.

A conservative panel of the U.S. 5th Circuit Court of Appeals said the judge was wrong to halt all use of mifepristone after it had been on the market for 23 years, but the appeals court rejected the FDA's actions that banned the drug had improved over the years. easily available. In 2016, the FDA said the drug could be used until the tenth week of pregnancy instead of only until the seventh week as initially allowed, and the number of required in-person clinical visits was reduced from three to one. as nurses, to prescribe and dispense mifepristone. The dosage was also reduced from 600 milligrams to 200 milligrams. In 2021, the FDA eliminated the requirement that mifepristone be administered in person; it was the only drug for which such a requirement existed.

The 5th Circuit overturned these 2016 and 2021 changes, concluding that they were “arbitrary, capricious, and an abuse of discretion” on the part of the FDA. If that decision is upheld, it would make it much more difficult for those seeking abortions to access mifepristone, and it is that ruling that is being reviewed by the Supreme Court.

There are several reasons why the Supreme Court should rule in favor of the FDA and mifepristone. First of all, no one has the authority to file this lawsuit. To appear in federal court, a plaintiff must have suffered a personal injury. But no one is getting hurt because the FDA is making mifepristone more readily available.

The main argument of Erin M. Hawley, who represented the plaintiffs, was that doctors who do not want to perform an abortion will have to do so in an emergency if complications arise from the use of mifepristone. But as the attorney general has repeatedly noted, federal law does not require any doctor to perform abortions or prescribe medications that conflict with their religious beliefs. Justice Elena Kagan emphasized that there is no evidence that a doctor with conscientious objections to abortions has ever been forced to do so because of FDA rules regarding mifepristone.

Even if the court stretches the law and finds that the plaintiffs have standing, the case should still easily resolve in the FDA's favor. Under the federal Administrative Procedure Act, an agency action may only be overturned if it is “arbitrary, capricious, or an abuse of discretion.” This is a legal standard that is very respectful of the agency. In 2021, Chief Justice John G. Roberts Jr. said. even: “The courts owe significant deference to the politically responsible entities with the 'background, competence and expertise to assess public health.' In light of the overwhelming evidence regarding the safety of mifepristone, it is impossible to say that the FDA's actions were arbitrary and capricious, regardless of the 5th Circuit's opinion.

One of the most frightening aspects of Tuesday's oral arguments was that both Justices Clarence Thomas and Samuel A. Alito Jr. invoke an 1873 law, the Comstock Act, which prohibits the shipment of obscene materials and contraceptives through the mail or common carriers. It also prohibits the shipment of “any article, instrument, substance, drug, medicine, or thing advertised or described in a manner intended to induce any other person to use or apply it for the production of abortion.” ” The Comstock Act has not been enforced for more than a century, but if the court decides to enforce it now, it will pose a huge threat to abortions, even in states where it is legal.

With six justices on the court who both oppose abortion and want to limit the power of federal agencies, it is difficult to predict the outcome of the mifepristone case, despite the clarity of the issues. If the court overturns the FDA here, it will open the door to challenges against countless other drugs.

Ultimately, as Judge Ketanji Brown Jackson pointed out at the end of oral arguments, the question is who should decide whether a drug is safe and effective: the FDA or the federal courts? Since 1906, without exception, the answer has been the FDA and that should remain the law.

Erwin Chemerinsky is a writer for Opinion and dean of the UC Berkeley School of Law. His latest book is 'Worse Than Nothing: The Dangerous Fallacy of Originalism'.

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