Abortion-pill fight turned down by Supremes ‘is far from over’

By Bob Unruh

U.S. Supreme Court in Washington, D.C. (Image by Mark Thomas from Pixabay)

Physicians’ organizations and doctors who sued to overturn the vast expansion of access to abortion drug Mifepristone that culminated under Joe Biden’s abortion agenda were rebuffed by the Supreme Court’s opinion that said they didn’t have standing under the law to challenge the actions by the Food and Drug Administration.

But there’s an easy solution, according to Mat Staver, the chief of Liberty Counsel, which has fought on behalf of pro-life issues for years.

“This case is far from over. The same lawsuit can be refiled with different plaintiffs who have standing. The FDA should no longer be allowed to circumvent safety laws to allow a eugenic drug to destroy innocent children and harm women. Chemical abortions are never safe and harm women and kill children,” he explained.

All that’s needed is a plaintiff “who can show a direct injury from Mifepristone traceable to the FDA’s deregulation.”

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The fight was over the FDA’s vast deregulation of the dangerous drug, a campaign that culminated in 2021 when it decided to give consumers nearly “unfettered” access.

The drug is used for chemical abortions, and it “effectively starves an unborn baby to death and has the potential for many significant adverse events harmful to women and girls,” the Liberty Counsel report said.

The FDA not only expanded its use, it said non-physicians could prescribe the drug, and they could be sent through the mail.

That alarmed a number of organizations, including the Alliance for Hippocratic Medicine, and doctors who challenged the expansion in court.

The opinion for the unanimous court was from Justice Brett Kavanaugh, and said the problem was that the plaintiffs don’t prescribe or use the drug, so they don’t have grounds to bring the complaint.

“Under Article III of the Constitution, a plaintiff’s desire to make a drug less available for others does not establish standing to sue. Nor do the plaintiffs’ other standing theories suffice…Under Article III of the Constitution, a plaintiff ’s desire to make a drug less available for others does not establish standing to sue. Nor do the plaintiffs’ other standing theories suffice. Therefore, the plaintiffs lack standing to challenge FDA’s actions,” the opinion said.

Kavanaugh said, “The plaintiffs have sincere legal, moral, ideological, and policy objections to elective abortion and to FDA’s relaxed regulation of mifepristone. 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. The plaintiffs may present their concerns and objections to the President and FDA in the regulatory process, or to Congress and the President in the legislative process. And they may also express their views about abortion and mifepristone to fellow citizens, including in the political and electoral processes.”

“If a group of concerned physicians can’t sue the FDA over the utterly politicized manner in which they approved and then expanded the availability of abortion pills, then who can? That’s the unanswered question in today’s ruling. How did a drug that sends one in 25 women who use it to the ER ever get approved? How did the FDA agree to allow it to be given to women without a physical examination? If —as it appears — no one can sue the FDA, then Congress must act to reign in the agency, which clearly cares more about shielding abortion providers than keeping American women safe,” explained Eric Scheidler, executive director of the Pro-Life Action League.

Erin Hawley, vice president of the ADF Center for Life and Regulatory Practice, said, “We are disappointed that the Supreme Court did not reach the merits of the FDA’s lawless removal of commonsense safety standards for abortion drugs. Nothing in today’s decision changes the fact that the FDA’s own label says that roughly one in 25 women who take chemical abortion drugs will end up in the emergency room—a dangerous reality the doctors and medical associations we represent in this case know all too well. The FDA recklessly leaves women and girls to take these high-risk drugs all alone in their homes or dorm rooms, without requiring the ongoing, in-person care of a doctor. While we’re disappointed with the court’s decision, we will continue to advocate for women and work to restore commonsense safeguards for abortion drugs—like an initial office visit to screen for ectopic pregnancies. And we are grateful that three states stand ready to hold the FDA accountable for jeopardizing the health and safety of women and girls across this country.”

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