The Supreme Court heard oral arguments Tuesday morning in a case that has everything to do with abortion and, at the same time, nothing to do with abortion. The court will decide whether the Federal Drug Administration acted properly in 2016 and 2021 when it made it easier for women to obtain mifepristone, one of the two drugs used in medication abortions in this country. At the same time, this case has nothing to do with abortion. It’s about whether the FDA, a federal executive agency, acted within its power when in 2016 and 2021 it loosened the restrictions on the distribution and use of a drug it approved for use in 2000.
Virtually two-thirds of women who obtain abortions in America, do so via medication abortions.
In almost two hours of oral arguments, the justices spent the vast majority of time addressing the biggest legal hurdle in this case: whether those who sued to invalidate the FDA’s decisions have legal standing to do so. And a majority seemed to be convinced that they do not. That will likely prove to be the safety hatch that lets the court avoid the larger questions dealing with reproductive rights that it left open with its Dobbs v. Jackson decision in 2022.
Since Dobbs, the number of women obtaining abortions has actually ticked up in this country. And significantly for the case now before the court, virtually two-thirds of women who obtain abortions in America, do so via medication abortions, which include taking mifepristone and one other drug.
Though mifepristone, according to some studies, is safer than Tylenol, it's more difficult to obtain. In 2016, the FDA allowed physician’s assistants to prescribe the medication and allowed it to be used up to the 10th week of pregnancy. (It had previously set the limit at seven weeks.) In 2021, the FDA allowed pharmacists to prescribe mifepristone directly and allowed it to be obtained via telehealth appointments and dispensed through the mail. The ability to dispense mifepristone through the mail makes a big practical and legal difference.
Practically, getting mifepristone through the mail may be the only way for women in the many states that have banned or restricted abortions to receive access to reproductive care. Legally, the FDA allowing mifepristone to be mailed raises questions about whether the Supreme Court will revive a long-dead zombie law, the Comstock Act of 1873. That Gilded Age era federal statute criminalized the sending of “obscene, lewd or lascivious,” “immoral” or “indecent” publications through the mail. During oral arguments, however, the justices devoted a small sliver of their questions to issues surrounding the Comstock Act, and it seems unlikely to play a significant impact on the court’s decision.
Getting mifepristone through the mail may be the only way for women in the many states to receive access to reproductive care.
Standing, as I’ve previously written, requires that those challenging a law or action in federal court show that they’ve suffered a concrete and particularized injury or actual and imminent harm which can be remedied by a favorable judicial ruling.
In this case, the challengers’ claim that they have standing is not legally sound. Doctors and medical groups sued in 2022 to invalidate the FDA’s actions in 2016 and 2021. The doctors claim that they have been harmed because they might at some point be asked to see a patient who suffers a side effect after taking mifepristone prescribed by someone else. While the studies cited by both sides differed as to the exact frequency of side effects suffered by women who take mifepristone, the majority of studies indicate that significant side effects are rare.
At least five of the nine justices sounded deeply skeptical of the challengers’ arguments that they have standing. For good reason. If the court accepts this theory of standing, then such a decision would allow almost any doctor to challenge the approval of virtually any drug because they might be asked to treat someone else’s patient who suffered an adverse reaction to that drug.
Justices across the ideological spectrum showed that they recognize the problems of the challengers’ specious argument. For instance, liberal Justice Kentanji Brown Jackson and conservative Justice Neil Gorsuch questioned why doctors who object to providing care to women who suffered rare adverse reactions to mifepristone were not protected by federal conscience protections. Such protections generally mean doctors with objections to providing certain medical services are not forced to do so. If they could claim such a protection, then that would eliminate the need for a nationwide injunction on the changes that the FDA implemented in 2016 and 2021.
The challengers had no meaningful answer to that question. In fact, they seemed to fail so miserably in persuading the justices, that we could potentially see a 7-to-2 decision against them. Only Justice Clarence Thomas and Justice Samuel Alito seemed to be buying what the challengers were selling.
Only Justice Clarence Thomas and Justice Samuel Alito seemed to be buying what the challengers were selling.
Conservative medical associations also sued to invalidate the FDA’s 2016 and 2021 actions. U.S. District Judge Matthew Kacsmaryk allowed those associations to stay in the case, because they could, in his view, essentially stand in the shoes of hypothetical women whose experience of taking mifepristone was too “deeply traumatizing” for them to file suit themselves. The justices’ questions focused on the individual doctors; they seemed even less inclined to find that the medical associations have standing.
Ultimately, if the high court’s opinion looks anything like Tuesday's oral arguments, this decision will have everything to do with standing and not reproductive choice. This is not only the legally correct conclusion, but it also allows the court a way out of dealing with the reproductive rights issue that this case brings up. The court won’t be able to avoid the questions left open by their decision in Dobbs forever, but they almost certainly will be able to avoid them in this case.