WASHINGTON — Two years after eradicating a constitutional right to an abortion, the Supreme Court went in the opposite direction Thursday, rejecting a challenge to the widely used abortion drug mifepristone that threatened to limit access to the drug and undermine the independence of the Food and Drug Administration.
The court unanimously said that anti-abortion doctors who challenged the FDA’s relaxation of rules on prescribing and dispensing mifepristone did not have a valid basis to sue.
Justice Brett Kavanaugh said the plaintiffs’ “serious legal, moral, philosophical and policy objections” to mifepristone do not give them the right to sue. Majority opinion.
Instead, he said, anti-abortion doctors can challenge them through the FDA regulatory process and Congress, and they can make their views known through the political and electoral processes.
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But Kavanaugh wrote that “allowing physicians and other health care professionals to challenge common safety regulations as illegally lax would be an unprecedented, open-ended approach, allowing physicians to sue in federal court to challenge nearly any policy that affects the public health.”
The ruling comes in the middle of a fierce presidential election campaign in which reproductive rights has been a major issue, and the Supreme Court has yet to decide whether doctors can provide emergency abortions in states that have banned abortions since overturning Roe v. Wade.
By deciding the mifepristone case on procedural grounds, the justices avoided the politically tricky question of whether they should question the FDA’s experts’ opinion that the changes it made were based on extensive evidence.
Mifepristone was first approved in 2000 and is now used in about two-thirds of abortions in the country, helping to explain the rise in the total number of abortions even after the Supreme Court overturned Roe v. Wade in 2022.
One of the reasons for the increased use of the drug in recent years is the FDA’s announcement that it can be safely prescribed via telemedicine consultations and mailed. It can also be prescribed by a pharmacist.
This expanded access to the medication to both women in states where abortion is still legal and women in states where abortion is not legal.
Anti-abortion doctors had asked the Supreme Court to overturn the relaxed rules after lower courts said they could not challenge the drug’s original approval.
But the high court said it could not do so because the doctors had not shown they had suffered sufficient harm from the FDA’s decision.
“Medical desert”
Doctors don’t prescribe mifepristone, but they argue that the FDA’s changes would make it more likely they would have to treat women who experience emergency complications from taking the drug, which is morally and ethically unacceptable.
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The Justice Department said that this had never happened before and that even if they were faced with such a situation, doctors would be able to object to a patient’s treatment on grounds of conscience.
The Supreme Court agreed, saying federal conscience laws “clearly protect” doctors from being forced to perform abortions or other procedures that violate their conscience.
The same is true in “medical deserts,” where other doctors are not readily available, the court said.
The case was the first time the Supreme Court had been asked to overturn an FDA determination that a drug was safe and effective, and drug companies had warned that doing so could throw the industry into chaos.
The case sent shock waves through the medical and legal communities last year when a U.S. District Court judge in Amarillo, Texas, appointed by Trump, halted the FDA’s two-decade-old approval of mifepristone. The right-leaning 5th U.S. Circuit Court of Appeals in Louisiana reinstated the FDA’s approval but upheld other parts of the judge’s decision, setting the stage for a showdown at the Supreme Court that has brought anti-abortion advocates and vocal abortion-rights protesters to the streets.
The Supreme Court’s decision was unanimous, even though Justices Clarence Thomas and Samuel Alito dissented early in the case from the court’s decision to allow full access to the drug while the litigation continued.
The consolidated cases are FDA v. Alliance for Hippocratic Medicine and Danco Laboratories v. Alliance for Hippocratic Medicine.
