Once again, the U.S. Supreme Court finds itself at the center of a national case involving access to abortion, this time around the drug mifepristone, which along with misoprostol forms part of the regimen for a so-called medication abortion. Its ruling is expected in June, and that ruling should be clear, if only to help clean up the mess the court created with its overturning of Roe v. Wade a year and a half ago.
For a body that had insisted its Dobbs ruling would finally and definitively send the question of abortion to the states, it has often found itself dragged back to the debate. This should come as no surprise; it was obvious even before Dobbs was leaked that the radical groups and officials hell-bent on taking away this medical choice from women would not be satisfied with doing so only within the confines of certain states.
Since Roe was first issued 50 years ago, the anti-choice movement have been very clear that they will not rest until not only is that precedent dead and buried – mission accomplished now on that – but until it is impossible for a woman or girl to avail herself of abortion care anywhere in the country, for any reason.
That is precisely why state officials have, for example, endeavored to prevent women from leaving states with abortion bans for others where the care is legal; it’s clearly not about state sovereignty but control over access wholesale.
In this case, the Alliance for Hippocratic Medicine – a preposterously named organization that in contrast to its moniker is in fact seeking to do plenty of harm – and other pseudo-medical organizations are suing the Food and Drug Administration over its 2000 approval and subsequent use authorizations of mifepristone.
We’ve said it before but it’s worth repeating: no one – not one peer-reviewed study, not one serious medical group, not one government assessment – has ever determined that mifepristone is any more dangerous than thousands of other drugs on the market. In fact, the evidence has shown that it is safer than common medications like penicillin.
Nor is there any particularly compelling case that there was anything irregular about the FDA’s approval of the drug, which underwent the same evaluative procedures as many others.
When the plaintiffs sued, they did so on a theory of legal standing that relied entirely on hypothetical harms that they might suffer from patients suffering from the very rare complications the drug could produce, or the hypothetical liabilities they might face; apparently painting a strained theoretical scenario is now enough to be taken seriously in federal court.
No surprise that the judge who first received the suit was ideological warrior Matthew Kacsmaryk, the go-to triggerman for conservative orthodoxy’s judicial drive-bys. His initial ruling was replete with language straight out of the anti-abortion activist playbook. An appeals panel correctly shot him down, but moved to overturn the 2016 and 2021 modifications that allowed mifepristone to be prescribed more easily and sent over the mail.
That ruling is now stayed, and the Supreme Court should make sure it never goes into effect. Sadly, the consequences of a lack of safe abortion procedures, unlike the plaintiffs’ standing, is far from hypothetical. If mifepristone is banned, more women will suffer, and more will die.
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