Boxes of the drug mifepristone sit on a shelf at the West Alabama Women's Center in Tuscaloosa, Alabama, on March 16, 2022.
SUPREME COURT DIVES BACK INTO ABORTION DEBATE, WILL HEAR ARGUMENTS ON MIFEPRISTONE REGULATION
Justice Neil Gorsuch raised concerns over judges who had issued a legal maneuver to block continued access to mifepristone. The Supreme Court for now has allowed the FDA regulations to stay in place pending a final ruling.
"We've had, one might call it, a rash of universal injunctions," said Gorsuch. "And this case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule or any other federal government action."
But Justice Samuel Alito questioned whether the FDA should have unfettered discretion.
"So your argument is that it doesn't matter if FDA flagrantly violated the law or didn't do what it should have done, endanger the health of women," Alito asked the U.S. Solicitor General Elizabeth Prelogar, defending the agency. "It's just too bad, and nobody can sue in court?"
Dozens of activists on both sides rallied in front of the court, in what has become a contentious election-year political, social, cultural and health-related debate.
The issues presented come nearly two years after the Supreme Court overturned the nationwide constitutional right to abortion, giving states individual discretion to regulate the procedure.
At the time, the court's 5-4 conservative majority declared "unelected members of this Court" would not be intervening in the future to "override the democratic process" of legislators and mandate national abortion policy.
New data from the Guttmacher Institute research group says nearly two-thirds of all abortions in the U.S. in 2023 relied on mifepristone.
Abortion rights groups say the drug has been proven safe, and that the court's decision could negatively impact 40 million women nationwide.
Anti-abortion organizations have countered that the FDA for two decades has unlawfully promoted a nationwide regime of on-demand abortion, in defiance of several state health and safety laws.
Mifepristone is taken along with misoprostol, and the two-drug combination is known as medication abortion or the "abortion pill." Lower courts concluded the federal agency did not fully consider the potential health risks to women when revising regulations for mifepristone beginning in 2016. Those revisions — last updated in 2023 — include reducing the recommended dose, allowing use of the drug up to 10 weeks of pregnancy (from seven weeks), approving a generic version and permitting it to be mailed (eliminating in-person doctor visits), among other measures.
Major pharmacy chains Walgreens and CVS announced this month they were certified to dispense the abortion drugs under the new rules.
Thirty-six states allow some form of access to mifepristone — 21 states in full and restricted in 15, according to Fox News research. Fourteen states ban abortion completely — including medication abortion — except for narrow exceptions.
A box of mifepristone pills seen at a pharmacy in Tehatta, West Bengal, India, on Aug. 18, 2023. (Soumyabrata Roy/NurPhoto via Getty Images)
The court spent relatively little time on the merits of the case and whether the FDA overstepped its authority by loosening restrictions on mifepristone access.
"The reality is, even if there is some increase in emergency room visits, the question of when that rises to a sufficient safety risk is up to the FDA, correct?" said Justice Sonia Sotomayor, regarding severe medical complications requiring hospitalization.
But Alito questioned how much discretion the FDA and other federal agencies should be afforded.
"The statement was made that no court has ever previously second-guessed the FDA's judgment about access to a drug," he said. "It's never second-guessed that? Do you think the FDA is infallible?"
This will not be the only abortion issue the Supreme Court is confronting this term. The justices next month will hold oral arguments on a challenge to Idaho's restrictions and whether they violate federal laws requiring hospitals to treat patients in life-threatening crises.
A federal court blocked enforcement of Idaho’s Defense of Life Act — which prohibits abortions unless necessary to save the life of the mother — on the ground that the federal Emergency Medical Treatment and Labor Act preempts it.
The state's near-total abortion ban establishes criminal penalties for doctors who perform the procedure, except under narrow circumstances.
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But the Biden administration counters that federal law requires emergency rooms to provide "stabilizing care," including abortions, for a broader range of circumstances than a mother's life, such as when a patient's health is in "serious jeopardy."
Other pending court challenges that may eventually reach the justices include whether the federal Title X family planning program can refer patients for abortions; and whether those whose religious faith supports abortion access can file First Amendment constitutional challenges to state bans.
How ever the court rules on these disputes, the political implications could be immediate and seismic in the November elections. The consolidated mifepristone cases are FDA v. Alliance for Hippocratic Medicine (23-235) and Danco Laboratories, LLC v. Alliance for Hippocratic Medicine (23-236). A ruling is expected by late June.
Shannon Bream currently serves as anchor of FOX News Sunday. She joined the network in 2007 as a Washington D.C- based correspondent covering the Supreme Court. Her latest book is "The Love Stories of the Bible Speak."
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