Minor Mifepristone Ruling is Major
A Trump appointed judge issued another ruling on Friday that paves the way for conservative activists to continue the fight to ban abortion drug Mifepristone, even if they lose their pending appeal.
A federal judge in Amarillo, Texas, ruled on Friday that three states, led by conservative interests, will be able to join the pending lawsuit that restricts access to the abortion pill Mifepristone. US District Judge Matthew Kacsmaryk determined that Idaho, Missouri and Kansas, now have the right to intervene in the case, which was originally filed against the US Food and Drug Administration (FDA) by anti-abortion groups in Texas.
Mifepristone is the first in a sequence of two medications used in a medicated abortion procedure that has been determined to be safe and legal in the United States since the U.S. Food and Drug Administration (FDA) approved it nearly 20 years ago. In April 2019, the FDA approved the first generic form of mifepristone, following a review of the evidence that medication abortion is a safe, effective way to end an early pregnancy — with a safety record of over 99%.
The US Supreme Court abandoned almost 50 years of precedent by overturning Roe v. Wade on June 24, 2022, which denied women the constitutional right to an abortion. This ruling, Dobbs v. Jackson Women’s Health, created a pathway for conservative states to ban abortion and the subsequent paired response was an onslaught of litigation seeking to limit access to Mifepristone as well.
The issue at hand is now one of standing. The lawsuit seeks to force the FDA to revoke, or scale back, the 2000 approval of the medication abortion drug Mifepristone, which is now the most common abortion method used by women. Following the Supreme Court’s reversal of Roe, a group of anti-abortion medical professional organizations, including the American Association of Pro-Life Obstetricians and Gynecologists, formed the Alliance for Hippocratic Medicine.
Conservative activists involved in the suit were able to choose a judge by incorporating the division within a small Texas town that was in a conservative judicial division. This guaranteed that the plaintiffs in question would draw an anti-abortion judge, who was willing to limit access to the drug. By using the claim that the medication was too dangerous to be on the market — despite indisputable scientific evidence to the contrary — Trump appointee Judge Matthew Kacsmaryk, was willing to suspend the FDA approval of Mifepristone. In April of 2023, Kacsmaryk ordered the FDA to withdraw its 2000 approval.
On appeal, the Fifth Circuit Court of Appeals scaled the Kacsmaryk order back slightly, finding that the plaintiffs were too late to challenge the 2000 decision. But the Court also determined at that time that the conservative Alliance for Hippocratic Medicine had presented sufficient evidence to show that starting in 2016, the FDA loosened the original Mifepristone restrictions. Under an arbitrary and capricious standard, imposed by the Court over the 2016 change in protocol by the FDA, the uber-conservative Fifth Circuit Court of Appeals ruled that the standard for approval of the drug was invalid.
According to the Brennan Center, this was the reasoning for the premise of the Fifth Circuit decision:
“The Alliance for Hippocratic Medicine rested that prediction on various falsehoods: that medication abortion can only be safely provided after an in-person examination (often a medical history is sufficient); that abortion providers regularly send patients with complications to the emergency room (in most cases, they treat them or arrange for treatment); that emergency complications from mifepristone are common; that these complications are uniquely challenging and upsetting (in fact, they manifest in the same way as a miscarriage); that any emergency complication would be attributable to the FDA’s 2016 and 2021 decisions to lift medically outdated restrictions (as opposed to its 2000 decision to approve mifepristone); and that any provider would have to provide care they object to morally, when federal protections allow them to opt out in those circumstances.
But, beyond these specific factual flaws, the court’s decision also constituted a major unprecedented expansion of standing law. To begin with, it allowed plaintiffs to claim injury based on the prediction that some (as-yet-identified) member would face a distressing medical case. Previously, both the Supreme Court and the Fifth Circuit flatly rejected this kind of predictive statistical theory of standing.
The court also credited plaintiffs’ self-serving and implausible claim that they — emergency medicine doctors — would somehow suffer psychological harm from treating women suffering abortion complications. As one commentator who had clerked for a conservative justice dryly put it, “If treating a patient makes you feel ‘complicit’ in whatever the patient did to come to the emergency room, being an emergency room doctor is not the job for you.” It is a particularly bizarre theory of standing that would allow emergency room physicians to prevent their patients from accessing a medical treatment because they don’t want to treat the rare complications from that treatment.
To be clear, one could argue that the federal courts have been too restrictive in their test for standing. One could even argue that emergency medicine doctors should be able to sue over policies that bring distressing cases to their hospital. But standing rules are supposed to be neutral principles that require courts to limit their role out of respect for the democratic branches. The main problem with the appeals court’s holding in this case is not that it’s too permissive, but that it’s totally inconsistent with how the Fifth Circuit treats plaintiffs seeking remedies that align with progressive policy goals.”
In December of 2023, the United States Supreme Court agreed to hear an appeal of this Fifth Circuit ruling, brought by President Joe Biden's administration to preserve broad access to the Mifepristone abortion pill. At that time, the Supreme Court also agreed to hear an appeal brought by the drug's manufacturer, Danco Laboratories. The order would allow the abortion pill Mifepristone to remain widely available for now, delaying the potential for an abrupt end to a drug that is used in more than half of abortions in the United States.
The unsigned, one-paragraph order, which was issued just hours before the restrictions on the medication were to take place, issued a stay as the case proceeds. This allows for the continued availability of Mifepristone as the appeal moves forward, and until the Supreme Court issues a ruling later this year. The Court also said that it would hear the FDA's appeal of that decision, but would not revisit the 2020 approval. This means the primary issue before the highest Court in the land will be one concerning standing based on the timeliness of the plaintiffs bringing a suit over the FDA’s original order issued in 2000.
President Biden released a statement in favor of the decision, saying the “administration will continue to defend FDA’s independent, expert authority to review, approve and regulate a wide range of prescription drugs.” Biden made a point to emphasize that the Texas ruling “would have undermined FDA’s medical judgment and put women’s health at risk.”
While this latest ruling that created a joinder of more conservatives states to the appeal before the Supreme Court might seem fairly insignificant, the Texas ruling issued on Friday is substantial for the following reason. If the United States Supreme Court finds that the anti-abortion groups behind the original lawsuit have no legal standing to sue, the states that have just been added to the case as litigants could pursue the litigation on their own.
Faced with an ongoing barrage of complaints over the Court’s legitimacy following the rollback of abortion rights, and the substantiated claims of conflicts of interest involving Conservative Justices, the United States Supreme Court now faces an unparalleled fork in the legal road. If anything, the federal courts have been too restrictive in their test for standing. These rules were created to exist as neutral principles that ensure the Court’s role remains limited, and that their respect for the other branches of federal government meant they would not overreach.
The Fifth Circuit ruling that now comes before the Supreme Court annihilated years of precedence and reversed how far the courts were willing to go to entangle themselves with democratic policy. When you add this to the shocking reversal of Roe v. Wade last year, which erased years of established law, you have a high Court that continues to perch itself precariously over a citizenry which questions its legitimacy.
This is a final chance for the Court to reclaim some consistency and reassure the country that is still committed to upholding Constitutional Law and well-established procedure. While the correct answer to the legal question appears obvious to most, we are all forced to wait and see if the Supreme Court is capable of correcting course and getting something right. This decision will be more than a basic comment on well-established procedure, it will be one that either seals or destroys the Supreme Court’s dwindling legacy.
Amee Vanderpool writes the SHERO Newsletter, is an attorney, published author, contributor to newspapers and magazines, and an analyst for BBC radio. She can be reached at avanderpool@gmail.com or follow her on Twitter @girlsreallyrule.
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This IS a War on Women. Thank you so much for your thorough and dogged coverage of this issue, Amee Vanderpool!
It strikes me that aggressive, hard-hitting support for single mothers, improving daycare opportunities and insisting that it be covered by insurance, expanding Medicaid, prosecution of rapists without further traumatizing the victim, school lunches and so many other efforts would solve this problem without further harming the victims. The horror stories about child welfare departments and the foster care system abound.
But these zealots aren't interested in raising healthy, happy, well-educated, well-adjusted children.
Frankly, they aren't all that interested in being alive and aware in the 21st Century.
Thanks for your thoroughness, Amee.
This slow roll into an authoritarian dystopian future where nine unelected self-proclaimed kings decide what is law is terrifying. Did anybody honestly believe that the anti-woman extremists would stop at abortion? Once they get this drug outlawed you can bet they’re going after the pill. It’s insane that we’re in this position in 2024, just insane. And the Dems have done themselves no favors. Biden should be out there day and night with his bully pulpit taking on the court, reminding we the people that the court is unelected, not answerable to anybody, lacks basic ethics and enjoys a guaranteed good wage, healthcare and private security paid for by we the people. I would even go so far as to say the court, who likes to bandy about “original intent” isn’t even authorized by the US constitution to have judicial review. The dems have sat on the sidelines for 30 years while the republicans slowly took over the courts, knowing that is where the real power lies. The high court continues to box itself into irrelevancy as it gets further and further away from the people. Dems need to get it together and soon.