The Supreme Court on Thursday rejected a legal challenge to the expanded use of the abortion pill mifepristone, allowing the current level of restrictions to stand for now. The Court, however, did not rule on the merits of the case, Alliance for Hippocratic Medicine (AHM) v. Food and Drug Administration (FDA), but ruled unanimously that the doctors who filed the lawsuit against the Food and Drug Administration did not have legal standing to sue.
In doing so, the Court did not rule on whether or not the FDA acted lawfully when it lifted the REMS [Risk Evaluation and Mitigation Strategies] safety requirements on mifepristone, the first drug of the two-drug abortion pill regimen. For now, the current REMS remain in effect.
“We are disappointed that the Supreme Court did not reach the merits of the FDA’s lawless removal of commonsense safety standards for abortion drugs,” said Alliance Defending Freedom (ADF), the legal group representing the plaintiffs, AHM (comprised of a group of physicians). “Nothing in today’s decision changes the fact that the FDA’s own label says that roughly one in 25 women who take chemical abortion drugs will end up in the emergency room—a dangerous reality the doctors and medical associations we represent in this case know all too well.” (emphasis added)
ADF added, “The FDA recklessly leaves women and girls to take these high-risk drugs all alone in their homes or dorm, without requiring the ongoing, in-person care of a doctor. While we’re disappointed with the court’s decision, we will continue to advocate for women and work to restore commonsense safeguards for abortion drugs—like an initial office visit to screen for ectopic pregnancies. And we are grateful that three states stand ready to hold the FDA accountable for jeopardizing the health and safety of women and girls across this country.”
Court rules federal conscience protections for doctors exist, even in emergencies
The Court also solidified that federal conscience protections do exist, even in emergency situations.
Interestingly, ADF points out that the Biden administration changed its position on conscience protections when arguing at the Supreme Court, differing from its argued position in the lower courts.
“The court recognized that our doctors would have standing to protect their conscience rights,” said ADF. “The government’s initial position was that federal law would not protect our doctors from being forced to participate in abortions. Yet at the Supreme Court, the government changed its position and said that federal conscience laws definitively protect doctors in these circumstances. This about-face explains why the Supreme Court parted ways with every other court to consider this case. And it resulted in the court recognizing that ‘[f]ederal law fully protects doctors against being required to provide abortions or other medical treatment against their consciences.’”
No word on how this particular recognition might affect another set of cases (Moyle v. United States and Idaho v. United States) before the Supreme Court in which the Biden administration is attempting to force pro-life states to provide “emergency abortions” in hospital ERs. Those states have laws that prevent the intentional killing of preborn children, but allow premature deliveries in medical emergencies as well as treatment for ectopic pregnancies and miscarriage.
A lack of standing because plaintiffs hadn’t suffered any injury
The case, Alliance for Hippocratic Medicine (AHM) v. Food and Drug Administration (FDA), challenged the FDA’s recent expanded access to mifepristone (Mifeprex), which included the removal of the required in-person visits to obtain the drug and the approval of the dispensing of abortion drugs virtually, by mail, or at the pharmacy.
Justice Brett Kavanaugh, writing for the court, said the plaintiffs had “sincere legal, moral, ideological, and policy objections to elective abortion and to FDA’s relaxed regulation of mifepristone,” but that this does not mean they had a federal case because they had not suffered any injury. “[T]he federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions,” Kavanaugh added.
AHM had asked the Court to reinstate the FDA’s safety standards regarding mifepristone that had been in effect for over 15 years. According to ADF, the FDA’s 2000 approval of mifepristone included these now-removed safety rules:
- Women must be seven weeks pregnant or fewer to take the drugs;
- Women must have at least three in-person doctor visits to prevent severe and even life-threatening complications;
- A doctor must prescribe the drugs; and
- A doctor must report all complications women suffer from the drugs.
AHM’s brief stated that the “FDA’s removal of safeguards for abortion drugs was arbitrary, capricious, an abuse of discretion, and otherwise unlawful.”
The organization also noted that these changes “increased the risk that more women taking abortion drugs will need emergency care.” It argued that raising the gestational age limit from seven to 10 weeks can cause the “‘failure rate’ [to climb] from roughly 2 to 7 percent, as confirmed by FDA’s label.”
In addition, AHM explained, the “FDA’s removal of the Day 14 in-person follow-up visit” will “naturally result[] in more women report[ing] to the emergency room,” and the FDA’s decision to end the “requirement that licensed doctors prescribe and provide ongoing care to women using abortion drug” results — as the FDA concedes — in “OB/GYNs, OB/GYN hospitalists, and emergency room doctors like Respondents ‘who must manage the aftermath.’”
Live Action Research Fellow Carole Novielli explained in a statement to Live Action News:
The Court ruled the Plaintiff doctors and medical associations did not have standing in part because they ‘have not shown that they could be forced to participate in an abortion or provide abortion-related medical treatment over their conscience objections.’
But how can these doctors know who is or is not entering the emergency room with an abortion-related complication when those tasked with implementing and following the FDA regulations under the REMS safety requirements openly tell their abortion clients to lie and present to the ER and claim they are experiencing a natural miscarriage?
Exactly how would ‘federal conscience laws definitively protect doctors from being required to perform abortions or to provide other treatment that violates their consciences’ if the doctor is lied to?
This is a valid concern. As Novielli points out, abortionists have advocated for women to lie about the fact that they’ve taken the abortion pill upon reporting to an emergency room or urgent care. If they do this, then the serious complications of the abortion pill are hidden, disguised as complications of natural miscarriage. This is a grave disservice to women, who have no idea about the abortion industry’s extraordinary lack of accountability when it comes to the abortion pill.
Pro-life reactions to the ruling
Lila Rose, president and founder of Live Action, responded to the ruling in a press release (emphasis added):
Our nation faces a crisis caused by the abortion pill and the Biden administration’s reckless actions to make the drug widely available and to reduce oversight as much as possible. The Supreme Court had an opportunity to respect the rule of law and rein in the Biden administration’s most egregious recent actions, including its decision to allow the abortion pill to be illegally shipped through the mail without an in-person doctor visit. It is regrettable that the Court declined to rule on that issue.
The Biden administration FDA’s unlawful and dangerous expansion of the abortion pill will continue to kill children and endanger their mothers because of the Supreme Court’s inaction. The Court did not consider the merits of this case; every other federal court that has reviewed the case’s merits has found that the Biden administration acted illegally in their abortion pill expansion. Instead, the Court ruled on purely procedural grounds, finding that the doctors who challenged the rules lack standing because they do not perform abortions.
Also responding to the ruling was Heartbeat International, which has a network of pregnancy resource centers that provide hormone treatment known as “abortion pill reversal” to women who regret beginning the abortion pill regimen. In a press release, Heartbeat’s president Jor-El Godsey stated, “The Supreme Court has denied women justice today. Women are more vulnerable than ever to shoddy research, predatory abortion practices, and extreme political ideology. The FDA has been rewarded for its bad behavior in expanding abortion while rolling back even common sense protections.”
The group’s senior director of medical impact, Christa Brown, noted how unaccountable the abortion industry is for women’s abortion pill-related injuries: “Those who prescribe and sell abortion drugs — sometimes through telehealth or websites — step aside when adverse events occur and women are abandoned to manage their own systems,” she said. “We know that one in 25 women require emergency care after consuming mifepristone. The consequence is that healthcare professionals on the frontlines in emergency departments throughout the U.S. are forced to care for those who require emergency care and surgery after taking mifepristone.”
Danielle White, Esq., the group’s general counsel, added,“The Court did not say today that mifepristone is safe for women, because indeed it could not. Chemical abortion hurts women, and the FDA needs to be held accountable for its blatant disregard for women’s health and safety.”
Alliance Defending Freedom said during a press conference that it is hopeful the legal case will continue at the lower court level, as three other states (Idaho, Kansas, and Missouri) have initiated similar lawsuits.
Editor’s Note, 6/13/24: This article has been updated since original publication.
