Legal Challenge to Abortion Pill Continues
Wednesday, April 26, 2023

The Supreme Court of the United States (SCOTUS) has allowed sale of the abortion drug mifepristone—which starves an unborn child to death— to continue nationwide as a legal challenge is heard after Northern Texas District Judge Matthew Kacsmaryk called for sale of the drug to be halted nationwide pending review of the FDA approval process which ignored established regulations. The appeal to the SCOTUS was made by the Biden administration and Danco, the maker of the abortion pill. A District Judge in Spokane Washington ruled in another case that mifepristone should remain on the market in 15 states plus the District of Columbia.

The SCOTUS vote was 7-2, with Justices Clarence Thomas and Samuel Alito dissenting. Justice Alito in his dissent called out the Food and Drug Administration (FDA) for the practice of “evading both necessary agency procedures and judicial review” noting that the FDA “has previously invoked enforcement discretion to permit the distribution of mifepristone in a way that the regulations then in force prohibited”.

Alito also expressed doubt that the Biden administration would obey the court’s ruling stating that “the Government has not dispelled legitimate doubts that it would even obey an unfavorable order in these cases, much less that it would choose to take enforcement actions to which it has strong objections.”

The Texas lawsuit was filed by the Alliance Defending Freedom (ADF) on behalf of the pro-life physicians’ group Alliance for Hippocratic Medicine. Following the SCOTUS decision, ADF Senior Counsel Erik Baptist said, “Our case seeking to put women’s health above politics continues on an expedited basis in the lower courts. The FDA must answer for the damage it has caused to the health of countless women and girls and the rule of law by failing to study how dangerous the chemical abortion drug regimen is and unlawfully removing every meaningful safeguard, even allowing for mail-order abortions. We look forward to a final outcome in this case that will hold the FDA accountable.”

The case is scheduled to be heard in the Fifth Circuit Court of Appeals headquartered in New Orleans on May 17th.

Reactions to SCOTUS Decision

Both President Biden and Vice-president Harris welcomed the SCOTUS ruling allowing broad access to the abortion pill to continue while the case is heard and called for federal legislation to codify Roe v. Wade. Biden praised the stay and used the occasion to call for voters to “elect a Congress who will pass a law restoring the protections of Roe v Wade” while calling the Texas case an example of “politically-driven attacks on women’s health”.

Vice-president Harris used the ruling to create a false narrative about impact on other FDA approved drugs saying, “Americans need to look no further than their medicine cabinet to see how many FDA-approved medications are at risk if lower court decisions disregarding the FDA’s scientific judgment are allowed to stand.”

Prior to the ruling, Vice-president Harris also called for a federal abortion legislation during a ‘conversation’ at the University of Nevada. She said, “But ultimately, I say to everybody here: What we need is federal legislation to be passed that would put back into place the protections that we had in Roe v. Wade.  We need to — we call it codify it.  We need to put those protections into law, because if we do that at a federal level, then we — then it will render all these things that are happening in these states null.  It will get rid of them, essentially.”

At a pro-abortion rally kicking off President Joe Biden’s re-election campaign, “Fighting for Reproductive Rights”, co-sponsored by NARAL Pro-Choice America, EMILYs List, Planned Parenthood Action Fund, and the American Civil Liberties Union (ACLU), Harris, after calling for federal legislation to guarantee access to abortion, attacked the idea of any national pro-life legislation or court decision saying, “And I’ll tell you — you know, I do believe that what is happening in the states — I really do believe that what is happening, that we’re seeing around the country, is part of an extremist plan to take this to a national agenda.  This is a plan that is an agenda about a national plan. 

“What they did with mifepristone — by the way, understand, the Supreme Court, they just stayed it.  You know what that means?  That’s temporary…If they determine to stand by that Texas decision, it will in effect be a national ban on abortion.  Be clear: There is a national agenda at play by these extremist so-called leaders.” 

In response to the SCOTUS decision, the chairman of the U.S. Conference of Catholic Bishops’ Committee on Pro-Life Activities, Bishop Michael F. Burbidge of Arlington, said, “The interim order by the Supreme Court is a tremendous disappointment, both for the loss of innocent preborn life from chemical abortion, and for the danger that chemical abortion poses to women. It is wrong to allow the FDA’s greatly diminished health and safety standards for mifepristone to remain in place. The FDA acted unlawfully when it first approved, and later relaxed safety requirements for prescribing and dispensing the drug. It is our hope and prayer that the Court will eventually overturn the FDA's improper actions.

“Abortion is never the answer for a difficult or unintended pregnancy, as it always ends one life and risks another. Meaningful compassion for both mothers and children is needed. We will continue to advocate for policies that put women and families first, serve women in need, and pray for the day when ending the lives of preborn children will become unthinkable.”

Rep. Chris Smith, co-chair of the Congressional Pro-Life Caucus, denounced what he called the FDA’s “illegal approval process” for mifepristone described as being “created to starve unborn babies to death — that’s how it works — and poses significant risks to the mother’s health”. Smith stated, “Beginning with President (Bill) Clinton, the FDA — supposedly our gatekeeper for drug safety — has actively promoted the abortion poison/baby starvation pill and failed to strictly adhere to its own testing protocols that should have been designed to protect women and girls.”

Smith continued, “Tragically, the FDA has instead enabled the abortion industry to prey on women and girls during their most vulnerable moments of need and has gone so far as to classify pregnancy as an ‘illness.’ Today, ‘adverse’ health events — complications — aren’t even reported to the FDA. That is outrageous and does a grave disservice to women.”

The congressman expressed support for the physicians of the Alliance for Hippocratic Medicine who brought the case stating, “Since the FDA failed to uphold its duty, the group of highly ethical doctors in this case have been relentlessly pursuing the truth in their efforts to hold the FDA accountable and I am grateful for their tenacity over the past 20 years.”

“After trying to hold the FDA accountable for more than two decades, these doctors are finally getting their day in court and the safety of women and girls is finally taking priority. We will continue to support these life-affirming doctors as this case moves forward to address the merits — with arguments scheduled in the Fifth Circuit Court of Appeals on May 17th,” he declared.