Abortion Drug Still Vulnerable Despite Supreme Court Ruling (1)

A unanimous US Supreme Court nixed a challenge to government rules that made an abortion drug easier to get, but that doesn’t mean the drug is safe from future attacks.

Several Republican-led states are primed to pick up the mantle after the nine justices agreed Thursday the anti-abortion doctors that brought the case didn’t have the authority, or standing, to sue over the Food and Drug Administration’s actions.

Notably, Missouri, Idaho, and Kansas have already intervened in the case before the district court, alleging their own unique harms. The states claim their residents are suffering serious medical complications that require emergency care after taking mifepristone that they’ve obtained through the mail and the states are having to pay for much of that care through Medicaid.

“It’s certainly not the last we’ve seen of these claims even if we don’t ultimately know how they’ll fare before the Supreme Court,” said Mary Ziegler, a University of California, Davis School of Law professor and expert in health care.

Ziegler noted Judge Matthew Kacsmaryk, the Trump-appointed federal judge in Texas who’s overseeing the case in the district court, has yet to rule definitively on whether the states have standing to challenge FDA’s actions, which allowed for mail-order prescriptions of the drug.

It’s unclear if the states can actually document that they’re suffering some kind of harm, she said.

Legal Technicality

The anti-abortion doctors involved in the case the Supreme Court ruled on originally challenged the FDA’s 2000 of approval of mifepristone, but the US Court of Appeals for the Fifth Circuit said they’d likely waited too long to challenge that decision.

What remained were challenges to subsequent actions the agency took to ease access to the drug, including expanding the time in which it could be used for abortions, allowing nurse practitioners to prescribe it, and removing the requirement of an in-person visit.

The doctors’ alleged harm caused by the FDA’s actions were too speculative, the court said.

“Specifically, FDA’s regulations apply to doctors prescribing mifepristone and to pregnant women taking mifepristone,” Justice Brett Kavanaugh wrote for the majority. “But the plaintiff doctors and medical associations do not prescribe or use mifepristone. And FDA has not required the plaintiffs to do anything or to refrain from doing anything.”

The Supreme Court “ruled on a legal technicality,” said Alliance Defending Freedom Senior Counsel Erin Hawley, who argued on behalf of the anti-abortion doctors.

In a press conference on Thursday, Hawley emphasized that the court didn’t get to the merits of the doctors’ challenges and that the ruling doesn’t impact the states.

That’s because while the states have successfully intervened in the district court litigation, the justices declined to let them join as parties to the high court proceedings. The court didn’t explain that decision.

But in opposing the motion, the Biden administration stressed that the states “ask the Court to grant intervention to consider in the first instance new standing theories that no lower court has addressed” and that the government and the drug’s manufacturer, Danco Laboratories, wouldn’t have the opportunity to fully brief.

The Supreme Court’s ruling, therefore, “doesn’t impact the states,” Hawley said, noting that the justices didn’t direct the district court to dismiss the case altogether.

“I would expect the litigation to continue with those states” making their own standing arguments.

But some court watchers say Kscamaryk should dismiss the lawsuit.

Because the Supreme Court found the parties had no standing, the attorneys general have no case to intervene in, said Carrie Flaxman, senior legal advisor at Democracy Forward, a nonprofit legal advocacy organization.

“That should be where it ends,” she said. “But we know that’s not where opponents of abortion access will end. Their goal is to remove this drug altogether from the market and if not, to impose these restrictions and we know they are going to continue to fight this battle.”

Potentially ‘Less Tenuous’

Jennifer Dalven, director of the ACLU Reproductive Freedom Project, agreed. This “is far from the end of the line,” Dalven said in an emailed statement.

Legal scholars noted the anti-abortion doctors were asserting very different injury claims than the states are making.

“The states, I think, are going to have an easier time in some ways,” said Kimberly Mutcherson, a Rutgers Law School professor and expert in reproductive health law. “The claims that they can make about how they’re potentially impacted by the FDA actions are potentially a little less tenuous.”

Though the states say they pay for health insurance for poor people through their Medicaid programs, and caring for more people with injuries from mifepristone comes out of their coffers, Mutcherson said those arguments are still a stretch.

Kavanaugh noted in his opinion for the court the possibility that no one could have standing to challenge the FDA’s actions in federal courts. “Rather, some issues may be left to the political and democratic processes.”