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Supreme Court upholds FDA’s approval of abortion pills for early pregnancies

The Supreme Court. (Joe Sohm/Dreamstime/TNS)

The Supreme Court on Thursday dismissed a conservative Christian group’s claim that the abortion medication used by more than 5 million American women is unsafe and should be withdrawn from the market.

In a 9-0 decision, the justices said these anti-abortion activists had no standing to sue. And they said conservative judges in Texas had no grounds for overturning the Food and Drug Administration’s regulations that allow for the pills to be delivered by mail.

But because the court dismissed the case on standing, the decision does not prevent other anti-abortion advocates from filing another lawsuit against the FDA.

“The plaintiffs have sincere legal, moral, ideological, and policy objections to elective abortion and to FDA’s relaxed regulation of mifepristone,” Justice Brett M. Kavanaugh wrote for the unanimous court. “But under Article III of the Constitution, those kinds of objections alone do not establish a justiciable case or controversy in federal court. Here, the plaintiffs have failed to demonstrate that FDA’s relaxed regulatory requirements likely would cause them to suffer an injury in fact. For that reason, the federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions.”

In 2000, the FDA approved the use of mifepristone as safe and effective for ending an early pregnancy. The pills are typically used in combination with a second drug, misoprostol.

In recent years, the agency relaxed its regulations for dispensing the pills. It did so based on studies that showed that serious complications were “exceedingly rare.” Under the new rules, pregnant women could obtain a prescription through telemedicine and receive the pills from a pharmacy or through the mail. And they could use the medication through 10 weeks of a pregnancy, up from seven weeks before.

The Guttmacher Institute reported that abortion medication was used in 63% of U.S. abortions last year.

Today’s decision does not change the law in states where abortions are illegal.

Shortly after the Supreme Court repealed the right to abortion in the Dobbs case, the Alliance Defending Freedom, a conservative Christian group, filed a lawsuit in Amarillo, Texas, seeking the repeal of the FDA’s approval of mifepristone. Their plaintiffs were doctors and other healthcare activists from across the nation who oppose abortion and contend the drugs are unsafe.

Usually, plaintiffs have to show they were personally harmed by a federal law to have standing to sue. These doctors did not perform abortions or dispense the drugs, but they maintained that at least a few of the group’s members could be on duty in the future in an emergency room when a patient arrived suffering from complications after taking the abortion pills.

The group sued in Amarillo knowing the case would come before U.S. District Judge Matthew Kacmaryk, a Trump appointee and Christian legal activist before his appointment.

As predicted, Kacsmaryk handed down a broad ruling last year. He ruled the anti-abortion activists had standing to sue, and he ordered the FDA “to suspend” its approval of the drugs.

A few weeks later, the U.S. Court of Appeals for the 5th Circuit agreed to limit Kacsmaryk’s ruling. By a 2-1 vote, the appeals court said it was too late to unravel the approval of the drug in 2000, but not too late to overturn the FDA’s regulations that since 2016 have made it easier for women to obtain the pills.

Biden administration Solicitor Gen. Elizabeth B. Prelogar appealed to the Supreme Court and called the case a first.

She said it “marks the first time any court has restricted access to an FDA-approved drug by second-guessing FDA’s expert judgment about the conditions required to assure that drug’s safe use.”

This story originally appeared in Los Angeles Times.

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