The Supreme Court stayed an April 7 ruling from the U.S. District Court for the Northern District of Texas, which had relied on an arcane 1873 anti-vice law to target the FDA’s 23-year-old approval of mifepristone, insisting that abortion drugs could not be sent by mail or any other delivery service. The judge in that lower court, Matthew J. Kacsmaryk, is a Trump administration appointee handpicked by antiabortion advocates, whose ruling relied on dubious scientific studies as well as charged language such as “unborn humans” to describe fetuses.
The following week, when the Biden administration appealed that ruling, the U.S. Court of Appeals for the 5th Circuit blocked Judge Kacsmaryk’s attempt to revoke FDA approval of mifepristone but denied the administration’s request to preserve full access to the drug — typically used as part of a two-drug regimen in more than half of abortions performed in the United States. In fact, the appeals court allowed much of Judge Kacsmaryk’s ruling to stand while the case remained on appeal, making it difficult for women to get access to the drug — only after three in-person visits to physicians and only in the first seven weeks of pregnancy, not the 10 weeks that the FDA had authorized.
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The Supreme Court on Friday did what the 5th Circuit should have, staying Judge Kacsmaryk’s ruling in full. As is customary in cases such as these, the court’s majority did not explain its reasoning. Only Justices Clarence Thomas and Samuel A. Alito Jr. dissented, Justice Alito arguing that stopping easy access to this abortion pill “would simply restore the circumstances that existed (and that the Government defended) from 2000 to 2016 under three Presidential administrations.” The FDA had originally approved mifepristone in 2000.
But, among other oversights, Justice Alito’s dissent ignores that the drug’s challengers — doctors who claim they would have to treat women who take mifepristone and get complications — have not experienced the kind of particularized, remediable harm from the FDA’s approval of the drug that would qualify them to even bring their lawsuit challenging the drug’s distribution. Typically, conservative jurists are sticklers for insisting that plaintiffs have “standing” to sue, a principle that limits judicial intervention to true “cases” and “controversies.” This case should not have proceeded beyond even the threshold question of standing, let alone resulted in any limits on the FDA’s mifepristone rules. That it did is a disheartening sign about the professionalism of some on the federal bench.
The Biden administration was right to call the lower court’s decision an unprecedented attack not only on women’s health care but also on the authority and expertise of the FDA, whose approval of mifepristone relied on data from numerous clinical trials. In recent years, the conservative legal movement has targeted multiple facets of the administrative state, and the attack on the FDA is no exception: If the Supreme Court agreed with Judge Kacsmaryk, the FDA’s regulatory authority over other drugs would be called into question.
Though the justices have avoided this mistake, for the moment, Friday’s decision nevertheless underscores how crucial, and vulnerable, access to reproductive care remains.
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