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Supreme Court hears abortion pill case

WASHINGTON (BP) – The U.S. Supreme Court heard oral arguments on March 26 in a case that will rule on the availability of mifepristone, a drug commonly used in medication abortions.

The case, Food and Drug Administration v. Alliance for Hippocratic Medicine, is the first time the Supreme Court has weighed in on the issue of abortion since the historic overturning of Roe v. Wade in 2022. A decision on the case is expected in June.

Tuesday’s arguments surround an August 2023 decision made by the Fifth Circuit Court of Appeals in New Orleans that placed limitations on the availability and usage of mifepristone. The ruling of the Appeals Court would end the availability of the drug by mail, allow the drug to only be used through the 10th week of pregnancy (rather than the previous limitation of seven weeks), and require the drug to be administered in the presence of a physician.

This ruling, put on hold by the Supreme Court until their decision is handed down, would reverse changes the FDA made in 2016 and 2021 which removed previously-established limitations on the use of mifepristone.

Originally approved by the FDA in 2000, mifepristone is reportedly used for more than half of all abortions in the United States. The drug is made by New-York based Danco Laboratories and is used in combination with a second drug, misoprostol, in medication abortions.

In September of 2023, both the Biden administration and Danco appealed to the Supreme Court to review and reverse the Fifth Circuit Court’s ruling.

A few months later, the Supreme Court announced Danco’s case, Danco Laboratories, L.L.C. v. Alliance for Hippocratic Medicine, and the FDA’s case would be heard together. Alliance for Hippocratic Medicine is a medical pro-life advocacy group.

The ruling of the high court will specifically examine:

  1. Whether the group of doctors (Alliance for Hippocratic Medicine) have standing (right to sue) to challenge the changes the FDA made in 2016 and 2021, which removed previously-established limitations on the use of mifepristone.
  2. Whether the FDA’s actions in 2016 and 2021 were “arbitrary and capricious,” as concluded by the Fifth Circuit Court in their 2023 ruling.
  3. Whether the previous district court’s decision to grant preliminary relief, voiding the FDA’s 2016 and 2021 actions for being “arbitrary and capricious”, was proper or not.

Elizabeth Prelogar, solicitor general of the U.S., spoke on behalf of the FDA in the case. She argued the respondents do not have standing because they fail to identify a specific doctor or doctors who themselves would face “imminent harm.”

Prelogar stated the respondents’ theories “rest on a long chain of remote contingencies.”

Lawyer Jessica Ellsworth spoke on behalf of Danco in their case.

She argued the Fifth Circuit Court’s decision “stops Danco from selling Mifeprex in line with that scientific judgment based on a highly attenuated claim that an unknown doctor could be called someday to an unknown emergency room after a series of decisions by third parties.”

Lawyer Erin Hawley argued on behalf of Alliance for Hippocratic Medicine.

In her opening remarks, Hawley argued the FDA “approved abortion by mail based on data it admitted was “not adequate.””

She stated the lower court’s decision “merely restored long-standing and crucial protections under which millions of women used abortion drugs.”

Each representative then faced questions on their arguments from the justices.

Hannah Daniel, policy director for the Ethics and Religious Liberty Commission (ERLC), was among the ERLC staff members present on Capitol Hill while oral arguments were heard.

“The ERLC was proud to stand alongside pro-life partners and allies to represent Southern Baptists on the steps of the Supreme Court this morning as the court heard oral arguments in the consequential abortion pill case for the cause of life,” Daniel said.

“Despite skepticism shown by some of the justices, Southern Baptists know that chemical abortion takes the life of a preborn child and poses significant harm to women. Regardless of how the court ultimately rules in this case, the ERLC will press forward in our fight against the predatory abortion industry.”

The journey of the case began when advocates filed a challenge to mifepristone in November 2022, shortly after the overturning of Roe v. Wade. In April 2023, a federal judge in Texas suspended the FDA’s original approval of the drug and its later changes to conditions for accessing the drug which made it more widely available.

The Department of Justice appealed this decision to the Fifth Circuit Court, leading to their decision from last August. Although the Appeals Court ruled to uphold access limitations for the drug, it did not rule in favor of revoking the FDA’s initial approval of it, saying efforts for reversal came too late.

A month later, the Biden administration and Danco appealed to the Supreme Court to review and reverse the Fifth Circuit Court’s ruling. The Supreme Court agreed in December to review both appeals and later schedule the March 26 date for oral arguments.

After the announcement, advocacy groups, doctors, more than 20 states and more than 100 members of Congress all filed amicus briefs in the FDA case.

The ERLC filed an amicus brief in the case on Feb. 29, alongside fellow pro-life organizations Human Coalition and National Association of Evangelicals.

Daniel said the brief focuses on both the tremendous loss of life mifepristone has caused and its traumatic effect on the women who have used it.

“As Southern Baptists, we know that abortion takes the life of a precious child made in the image of God,” Daniel said.

“Chemical abortion not only takes that life but also leaves physical and emotional scars on thousands of women who take these harmful drugs … we are urging the Court to uphold the Fifth Circuit’s ruling and reinstate vital safety precautions that will radically limit the usage of mifepristone.”

The document condemns the FDA’s approach to mifepristone over the years, and the negative effects it has caused.

“The FDA’s removal of the in-person dispensing requirement has already led to increased harm to women,” the brief states. “Amici believe in the inherent dignity and worth of all human beings—including women and unborn children. Amici also affirm that every human is made in the image of God and must be protected from harm.

“The FDA failed millions of women and their unborn children when it eliminated necessary safeguards for mifepristone at the insistence of the abortion industry. Women and their unborn children alone will bear the costs of the FDA’s irresponsible deregulation of medication abortion.”