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By any fair measure, FDA v. Alliance for Hippocratic Medicine — challenging access to the abortion pill mifepristone — is the biggest abortion rights case to reach the U.S. Supreme Court since Republican-appointed justices overturned Roe v. Wade. It’s also a case that, as NBC News reported, isn’t likely to go the right’s way given what we heard during this morning’s oral arguments.
[D]uring the arguments, there was little discussion of whether the Food and Drug Administration’s decisions to lift restrictions on the drug were unlawful. Instead, the justices focused on whether the group of anti-abortion doctors who brought the lawsuit even had legal standing to bring the claim. The plaintiffs, represented by the Alliance Defending Freedom, a conservative Christian legal group, argue that the FDA failed to adequately evaluate the drug’s safety risks.
For those who might benefit from a refresher, the FDA approved mifepristone nearly a quarter of a century ago. It's used as part of a two-step process to terminate unwanted pregnancies up to 10 weeks, and the drug has proven to be safe, effective, and commonly used.
Nearly a year ago, U.S. District Judge Matthew Kacsmaryk — a Trump-appointed jurist in Texas with a background as an anti-abortion activist — nevertheless took it upon himself to suspend the FDA’s approval of the medication.
As a Slate analysis noted soon after, the judge’s order marked “the first time in history that a court has claimed the authority to single-handedly pull a drug from the market, a power that courts do not, in fact, have.”
As Rachel explained on last night’s show, Kacsmaryk’s ruling “was not a monument to intellectual heft.” Indeed, as my MSNBC colleague Ja’han Jones has explained, the district court ruling relied on highly dubious studies — which have since been retracted.
A Vox report added that the GOP-approved judge in this case “cited another ‘study’ that collected ‘data’ entirely from anonymous blog posts published on an anti-abortion website. According to a brief filed by the ACLU and two other organizations, Kacsmaryk relied on testimony by a ‘doctor’ who isn’t actually a physician at all — the man in question’s only advanced degree is a masters in theological studies.”
The decision was widely panned as a “travesty” and “indefensible,” but an appeals court — which is also stacked with Republican-approved judges — nevertheless upheld key elements of the lower court’s ruling, leading to an appeal to the U.S. Supreme Court.
My MSNBC colleague Jordan Rubin has an excellent report today on the issue of standing, and why this case “should never have been a case to begin with.” It's worth your time to understand what's likely to happen.
But while we wait for the ruling, it’s also worth keeping in mind the potentially larger scope to the dispute. For one thing, this might’ve started as a Texas case, but if the Supreme Court’s far-right majority rescinds FDA approval of this safe, effective, and commonly used medication, it would affect Americans nationwide, not just in red states.
For another, as the Center for Reproductive Rights’ Nancy Northup explained on last night’s show, this case also has the potential to reach beyond abortion care and affect the government’s approval of all medications.
The stakes, in other words, are very high. Watch this space.