Explaining The Big Ol' Abortion Pill Supreme Court Hearing Today
Pretty sure they're going to choose 'stare decisis' and 'judicial restraint'.
Today, the Supreme Court of the United States will hear arguments in FDA vs. Alliance for Hippocratic Medicine, a case that will ultimately impact not only access to the abortion pill, but also whether or not people with a particular agenda can use junk science as a means to legally achieve it. It will also determine whether or not a rag-tag bunch of poorly qualified doctors and theologians should be allowed to overrule the FDA’s approval of … well, anything, I suppose. Or whether the FDA should have any power to approve drugs or anything else at all.
It’s a big day at the old SCOTUS, is what we are saying!
This all started when the “Alliance for Hippocratic Medicine,” a coalition of various anti-abortion-rights medical groups, challenged the FDA’s approval of the drug 24 years ago.
The group claimed, 24 years after it was initially approved, that the FDA had no “authority” to approve the drug, that it was insufficiently tested for safety, and that it violated the Comstock Act … an old-timey anti-obscenity law from 1873 that, in addition to barring the mailing of birth control and abortifacients, also banned people from mailing sex toys, pornography, and copies of Walt Whitman’s Leaves of Grass.
The case has already been heard by Judge Matthew Kacsmaryk, who found in the group’s favor and “reversed” the FDA’s approval of the drug, and by the extremely conservative Fifth Circuit Court of Appeals, which reversed Kacsmaryk’s decision on the initial approval, but held that the agency “went too far” in 2016 and 2021 in relaxing the rules around the drug and required them to revert to the pre-2016 conditions for use.
This would mean that people would no longer be able to get mifepristone prescribed to them through telemedicine or from a nurse practitioner and would have to go to see a doctor in person to get the medication (instead of from a pharmacy) and also that they would only be able to use the pill up to 7 weeks into a pregnancy instead of 10.
At issue is, first, whether the Alliance of Quacks has any standing to sue the FDA in the first place. They claim they might be forced to treat someone who came into the ER after taking mifepristone, which would take time away from other patients who needed them and make them a party to an elective abortion — which is not unlike saying that someone coming into the ER after getting wasted and driving their car into a tree makes the doctor that treats them a party to drunk driving. People have to go to the emergency room after getting all kinds of things stuck in their butts, but does that mean the doctor that treats them is a party to shoving a can of Axe Body Spray where the sun don’t shine?
The FDA says they do not have standing because “All of respondents’ theories of injury reduce to the assertion that FDA’s changes to mifepristone’s conditions of use could marginally increase the risk that one of respondents’ seven identified doctors may be called upon to treat a woman who has chosen to take mifepristone and experiences an exceedingly rare serious adverse event—a scenario that can occur only at the end of a long chain of contingencies involving independent decisions by third parties.”
That seems about correct!
If the Supreme Court determines that they do have standing, they will then have to determine whether or not the FDA was “arbitrary and capricious” in loosening its Risk Evaluation and Mitigation Strategies (REMS) for mifepristone in 2016 and 2021.
The Alliance of Hippocratic Medicine asserts that they didn’t do a study on the “cumulative effects” of all the changes made to the REMS. The FDA’s response to that is mostly “that’s not a thing” and they did not have to do any study on the “cumulative effects” because they have studies and 24 years of use showing that mifepristone is safe and that the in-person requirement is therefore unnecessary. They also argue, quite fairly, that they are the experts in this matter, not judges.
Under any other circumstance, this would not even be questioned. It’s only because this particular pill does something these people don’t like that it is an issue. They were mad because these pills have made it so that people in states that ban abortion can still have abortions in the early stages of their pregnancies, so they made up a bunch of stuff and threw it up against the wall to see if it stuck.
Unfortunately, it did.
Now the FDA and mifepristone’s manufacturer, Danco, are appealing the Fifth Circuit’s order to the Supreme Court, which is hearing its first abortion case since it murdered Roe v. Wade.
But that’s not all that is at issue.
“This is a case in which a group of extremists who want to see abortion banned nationwide are using junk science to try to achieve that goal — and, so far, finding receptive ears from the judges they hand-selected to hear their case. We can all agree that access to safe and effective FDA-approved drugs like mifepristone should be based on rigorous scientific research and the expert medical consensus,” Julia Kaye of the ACLU’s Reproductive Freedom Project explained in a January statement announcing the group’s filing of an amicus brief in the case. “But the Texas courts were apparently so eager to reinstate barriers to mifepristone that they swallowed hook, line, and sinker the debunked claims and laughably flawed research put forward by a bunch of discredited anti-abortion zealots. It is chilling to think that courts could strip away access to safe FDA-approved medications relied on by millions based on the say-so of a few unqualified ideologues, yet that is exactly the world we will be living in unless the Supreme Court makes this right.”
If the court does find in favor of the Alliance for Hippocratic Medicine, this will mean, more or less, that people will more or less be able to make up their own “science” and use it to get what they want. Now, this already happens in criminal courtrooms throughout the United States — if prosecutors don’t have actual evidence in a case, they can always call in an “expert witness” with barely as much training as I got to pierce baby ears at Claire’s to come in and say that the forensic evidence tells whatever story they want it to tell. There are no rules barring them from making any claims that have been otherwise proven to be nonsense. People are still regularly going to prison for “shaken baby syndrome” even though we now know that the “evidence” that supposedly proves it happened is junk science.
That, already, should not be a thing. Moving this ridiculous practice into civil court could have some very serious implications for our education system, for environmental regulations, for almost any other kind of nonsense the Right wants to come up with in order to get their way.
Some of the “experts” who testified when the case was in front of Judge Kacsmaryk’s Texas federal district courtroom and the Fifth Circuit Court of Appeals have long and storied histories of inaccuracy.
Dr. Ingrid Skop, according to the ACLU, has admitted to being “not a really good researcher,” which is perhaps the reason why “research” on mifepristone was published by a group that also claimed that President Obama was hypnotizing people with his voice and his “O” logo, which they claimed “looks like a crystal ball.” Her work was cited by the Fifth Circuit 17 times!
Mario Dickerson was also cited by the Fifth Circuit in its decision, and he’s not even a doctor! Nope! His degree is in theological studies, which certainly qualifies him to be an expert on whether or not a pill approved by the FDA is safe or not. I mean, why have an FDA at all? Why not just pluck a few guys out of divinity school and tell them to have at?
Decreasing access to mifepristone in this way could impact even the ability of those in states where abortion is legal to get it, as even in those states, not everyone lives near an abortion clinic. In states where it is not legal, it could lead to people attempting to do a medication abortion with misoprostol alone, which would mean the process would have a slightly lower chance of success and an almost guaranteed chance of spending several more hours with cramping, nausea and other side effects. In other words, it would be less safe.
If 24 years of people safely using a drug isn’t enough “testing” for this group, if it’s not enough for SCOTUS, it’s really not clear what would be. What is certainly clear is that if this group gets its way, if they figure out that all they have to do to get what they want is to just make shit up … it’s only going to get worse from here on out.
PREVIOUSLY:
If the court rules that the FDA can be overridden because somebody somewhere is big mad about a drug they don’t like, I will generously donate to a fund that will find a bunch of women who have been personally inconvenienced by dirty old men and who will sue to ban Viagra.
Tammy Duckworth @SenDuckworth
"A list of who should be able to make decisions about your reproductive system:
-You
That's it. That's the list."