Supreme Court to Review FDA’s Controversial Approval of Risky Mail-Order Abortion Services

The U.S. Supreme Court heard oral arguments on Tuesday about a drug regimen responsible for more than half of the nation’s abortions. The justices are tasked with determining whether to let a decision from the 5th U.S. Circuit Court of Appeals that found the Food and Drug Administration likely violated the law when it approved the abortion pill for mail order and other expansions stand.

U.S. Solicitor General Elizabeth Prelogar introduced the case by claiming that the plaintiffs, a coalition of pro-life medical professionals, had no standing to bring it.

Federal Judge Matthew Kacsmaryk previously established that the plaintiffs had standing based on their own experiences and on behalf of their patients. As Federalist Legal Correspondent Margot Cleveland noted in her analysis of his ruling, “The Supreme Court has allowed abortion doctors to represent the interests of women seeking abortions, notwithstanding the conflict of interest between the two — with the abortionists often seeking to scrap laws designed to protect their patients.”

When pressed by Justices Clarence Thomas and Samuel Alito, however, Prelogar could not name anyone, including pro-life doctors, states, and women harmed by the drug, who the government believed would have judicial recourse to sue the FDA over the abortion pill.

“So your argument here is that it doesn’t matter if the FDA flagrantly violated the law, didn’t do what it should have done, endangered the health of women, it’s just too bad? Nobody can sue in court? There’s no remedy — the American people have no remedy for that?” Alito asked.

“Well, I think that it would be wrong to suggest that if the FDA had made a mistake and a drug were actually producing safety consequences that there was nothing to be done,” Prelogar replied.

She concluded that Alito’s suggestion that “unsafe drugs could somehow remain on the market” is “incorrect,” despite data showing mifepristone is responsible for a 500 percent increase in abortion-related emergency room visits for complications such as hemorrhage, “fast, weak pulse,” “shortness of breath,” diarrhea, dizziness, headache, vomiting, and “pain” across the back, arms, neck, and abdomen, and a myriad of other risks. Even the FDA admits in the mifepristone label that 1 in 25 women who down the drug will end up in the hospital.

The justices’ question-and-answer volley over standing quickly devolved into a debate about conscience objections.

Prelogar, representing the most hostile administration to conscience objections regarding abortion, repeatedly argued that medical professionals, even those who work in emergency rooms, have the federally guaranteed space to abstain from aiding or abetting a chemical abortion.

As Roger Severino, the Trump-era director of the Office of Civil Rights at the U.S. Department of Health and Human Services, noted, however, President Joe Biden has not only worked overtime to undo these protections, but his Department of Justice has also refused to pursue legal recourse for healthcare workers whose conscience rights were verifiably violated.

Erin Hawley, the Alliance Defending Freedom senior counsel representing the plaintiffs, repeatedly noted that even pro-life doctors like OB-GYNs Ingrid Skop and Christina Francis, who register their conscience objections ahead of time, could face emergencies hampering their ability to object to continuing a chemically-induced abortion.

“The FDA’s decision to weaken commonsense safeguards, removing doctors from the process, shows they prioritize ending unborn life over the health and safety of women. As a practicing OB-GYN with over 30 years of experience, I have seen how abortion drugs have harmed my patients, both mothers and their unborn children. I have cared for many of these women in the ER, even though abortion advocates pretend they don’t exist. Their stories must be heard, but abortion advocates, working with corporate media, have gaslighted them into silence. I hope the Supreme Court holds the FDA accountable for their reckless actions,” Skop said in a statement.

Yet, Democratic-nominated justices continually dismissed these concerns. Justice Sonya Sotomayor even implied that because the risk of harm for doctors like Skop and Francis is so “infinitesimally small,” their objections are not necessarily relevant to the case.

A Two-Decade Fight

Prelogar concluded oral arguments by claiming that the case against the FDA “harms the agency,” “harms the pharmaceutical industry,” and “harms women who need access to medication abortion.” Her conclusion that the FDA’s approval alone means mifepristone is “safe and effective,” however, is not present in data about the drug.

For more than two decades, pro-life doctors repeatedly asked the FDA to repeal its approval of chemical abortion drugs because the agency used accelerated drug approval authority to fast-track pills that can cause dangerous and sometimes fatal complications. The FDA repeatedly stonewalled petitioners’ requests despite its legal obligation to address concerns.

The FDA claims to limit the pill use to 70 days gestation. Yet, it does not require prescribers to conduct an ultrasound verifying the unborn baby’s age or location in the woman’s body, leaving some patients with ectopic pregnancy more susceptible to complications.

Thanks to the radically relaxed policies introduced at the bidding of the Biden administration and the manufacturer of mifepristone Danco Laboratories, the drug regimen is readily available via mail order and sale in pharmacies like Walgreens and CVS and could easily be obtained by women well beyond that 70-day limit.

Under the Biden administration, the FDA quietly modified its already debated regulation to accommodate the White House’s post-Roe activism and open the door for the nation’s pharmacies to become abortion pill dispensaries. That was after it permanently allowed abortion pills via mail in 2021.

Before that, under the Obama administration in 2016, the FDA expanded when girls and women could take the pill, changed its dosing, reduced the required number of doctor visits to obtain the drug, allowed more people than licensed doctors to prescribe the pill, and eradicated reporting standards for non-fatal complications from the pills.

Just a few weeks after the court faced threats from Biden over its latest abortion decision, New York’s Democrat Gov. Kathy Hochul publicly attempted shortly before Tuesday’s arguments to sway justices away from siding with the plaintiffs in the abortion pill case.

“Don’t underestimate the rage of women in this country. They will march; they will take to the streets; they will protest and there will be electoral consequences,” Hochul claimed