Supreme Court to Hear Abortion Pill Case Tomorrow
The ruling could be more impactful than Dobbs. Or render Dobbs less impactful.
USA Today (“Abortion pill challenge gives Supreme Court chance to move toward national abortion ban“):
Two years after the Supreme Court erased the constitutional right to an abortion, creating a patchwork of access across the country, the justices could now pave the way toward a national ban.
In a case they will consider Tuesday about access to the abortion drug mifepristone, the court could give legitimacy to a nineteenth century obscenity law that some abortion opponents are promoting as a de facto federal abortion ban that just needs enforcing.
Even if the court decides the case without addressing the 1873 Comstock Act − which it could easily do − the justices could restrict access to mifepristone in a way that would make it more difficult for millions of women to end a pregnancy in states where abortion is legal.
The result would be an end run around the court’s stated purpose, when it overturned Roe v. Wade, of leaving the question of abortion to Congress and the state legislatures, according to abortion rights advocates.
Keeping in place a lower court’s decision restricting access to mifepristone, more than 640 state lawmakers wrote in a brief to the court, would “wrest the power to decide abortion access issues back out of the hands of state legislators.”
Abortion opponents say it’s the Food and Drug Administration that is doing the end run around the Supreme Court’s 2022 decision by enabling women to circumvent state abortion bans by allowing unreasonably easy access to mifepristone.
The FDA’s actions “rob from the people important decisions on this vital issue,” the attorneys general of 22 states told the court.
More than six in 10 abortions in the United States last year were completed with pills, according to the Guttmacher Institute, a research group that supports abortion rights.
The Supreme Court is deciding whether the FDA improperly relaxed requirements on mifepristone, one of the two drugs used in medication abortions for early pregnancies. The New Orleans-based 5th U.S. Circuit Court of Appeals said the FDA should not have allowed mifepristone to be dispensed through the mail, along with other changes.
WSJ (“Abortion-Pill Case Puts Supreme Court Back in the Hot Seat“):
The Supreme Court on Tuesday will consider whether to roll back the availability of the abortion pill known as mifepristone as women increasingly rely on medication to end unwanted pregnancies.
The case has quickly forced the court back into the abortion thicket after its decision two years ago in Dobbs v. Jackson Women’s Health Organization eliminated federal protections for the procedure. Since then, roughly one-third of states have banned many or most abortions, but mifepristone is more readily available than ever, especially by mail, and overall abortions haven’t declined.
This has bedeviled Republican politicians and disappointed antiabortion groups who hoped the demise of Roe v. Wade would substantially reduce the number of pregnancy terminations. Medication abortions now make up nearly two-thirds of abortions. There were some 150,000 more of them in 2023 than there were before the decision, in 2020, according to the Guttmacher Institute, a research group that supports abortion rights.
“That model really poses a threat to the antiabortion movement because once pills are in the mail it’s pretty hard to track where they go and where they end up,” said Rachel Rebouché, the dean of Temple University’s law school.
At issue in Tuesday’s case is whether the Food and Drug Administration acted reasonably in adopting rules that have made it easier to obtain mifepristone since 2016. As a legal matter, that is fundamentally different from the Dobbs case, which discarded the 1973 court’s view in Roe that a woman’s control over pregnancy before fetal viability could be inferred from broad constitutional guarantees protecting individual liberty. By withdrawing the right to an abortion, the court left states to restrict the procedure or not as they see fit.
[…]
Elizabeth Sepper, a law professor at the University of Texas, said Tuesday’s case could show how far the court’s conservative majority, already critical of regulatory agencies, is willing to let litigation rather than rule making shape policy decisions.
When it comes to expertise, “the Food and Drug Administration is really the gold standard,” Sepper said, and the agency has been central to the success of the American pharmaceutical industry. Drugmakers are backing the regulators. “They are very, very worried about the idea that the FDA could be second-guessed in the courts based on the say-so of any E.R. doctor anywhere,” she said.
The high court’s ruling, expected by July, will land in the middle of the election season and has the potential to shake up races that are up and down the ballot, at a time when abortion has proved to be a key political issue post-Dobbs.
In some ways, the abortion-pill case has the potential to affect a greater number of women than Dobbs. Even without the constitutional protections Roe provided, more than half the states have legal access to abortion. But if pill access is restricted, abortions will be more difficult to obtain across the nation.
“States like California and New York are going to be just as affected by any roll back,” said Nancy Northup, president and chief executive of the Center for Reproductive Rights, which represented an abortion clinic in the Dobbs case.
The current suit, filed by Alliance Defending Freedom, a Christian conservative advocacy group, on behalf of antiabortion doctors and medical associations, alleges the FDA flouted legal obligations to ensure patient safety when it relaxed restrictions on access to the drug. Erin Hawley, an ADF attorney and wife of Sen. Josh Hawley (R., Mo.), will argue Tuesday for the challengers.
This case could be a double whammy. The right-most Justices have been signaling for years that they want to overturn a decades-old precedent that the courts should grant extreme deference to federal regulatory agencies in their rule-making. That they have the ability to do so in a case that would make abortion radically more difficult even in the bluest states would likely make them giddy.
On the broader question, I’m somewhat sympathetic to Thomas and company ideologically but think it would be a disaster practically. Congress has delegated huge chunks of its express powers to Executive branch agencies, exercising its Constitutional authority in the breach via the oversight function. This rather stands the Constitution on its head. But there’s really no practical alternative. Congress lacks both the bandwidth and expertise to legislate these areas on a detailed basis. Even absent the longstanding partisan gridlock in that body, there’s simply no way to govern a modern society in the manner envisioned by the Framers way back in 1787.
Whether the FDA overstepped its bounds in making mifepristone easily available by mail is well outside my expertise. But, considering that they ruled it safe for early-term abortions a quarter-century ago, it certainly seems reasonable to make it more readily available.
This, of course, creates a standoff. Dobbs returned the power to decide whether abortion is legal to the several states. Yet, since drug regulation is a federal responsibility, that power is all but circumscribed by the easy availability of this drug by mail.
So, even aside from the legal issues, SCOTUS is in a tough position. It put its legitimacy on the line by overturning a half-century-old Constitutional right that it had created. Now, it either has to render Dobbs all but meaningless or it has to double down on destroying precedents. Either way, it’s legitimacy is further weakened.
When I was working on medical devices I was part of my company’s team looking at the impact of the ACA (Obamacare), which is much, much more extensive than just the insurance part that most people think of. It is unimaginably difficult to craft these rules and requires deep knowledge of, to pick just one example from a myriad, the varying policies for reimbursement hundreds of different insurance companies have created and evolved over time to deal with hundreds of thousands of different providers, as well as the tools and systems used to communicate back and forth. Saying that Congress lacks the expertise, while true, implies it’s a staffing issue. It’s not. We don’t want Congress to have this kind of expertise on the thousands upon thousands of things they legislate on. It would add hundreds of thousands of people to the government payroll and it would be a complete waste. The people with that expertise are the people in the agencies that already live and breath this stuff every day. What is Congress going to do, get into a bidding war with the Executive branch in an attempt to hire them away?
Ah, this seems like it is related to what I just put in the open thread about the FDA agreeing to remove and never repost their lies about Ivermectin being for animals, not humans. The FDA demonstrated it was not the “gold standard” during the pandemic by with malice of forethought issuing drug misinformation.
Both cases deal with whether the FDA is acting as a physician rather than just a regulator to ensure drug safety.
Seems like this could impact then now defunct telemedicine across state lines that was permitted during the pandemic.
Decades ago J. K. Galbraith noted that only large unions and the government are able to countervail the power of large corporations. Large unions have mostly been gotten rid of. Removing the power of government to regulate corporations is what the Federalist Society was founded to do. However, this case seems a poor vehicle for it.
Who could have guessed that a bunch of religious nuts running headfirst into the practice of actual medicine would end up like this? The funny thing is that short of dissolving government’s ability to regulate (which sensible libertarians always assure us is not what they think should happen regarding regulation) there’s nothing to be done. At a certain point, if the only people upset about regulation are cranks who have no connection to the producers, administrators, regulators, and users, what exactly can you do?
This is like the trans debate, where trans people seem fine with their health care but weirdos on the fringes are really pissed. Cultural conservatives have hit a reddit-level of alienation. They’re not exactly conservative anymore. Prince Charles is a traditionalist. He doesn’t like modern stuff. But he also loves the environment and nature and the earth, and American conservatives seem to find those as alienating as science and regulatory agencies.
Someone at WSJ doesn’t know the definition of hot seat.
Another fake case with made-up plaintiffs who’ve experienced no injury, existing only to exploit the hackery of rightwing judges forcing their religious dogma onto the constitution. Embarrassing.
The question is, where do you strike the balance between the practical necessity of delegation that allows the Executive to fill in the details and administer legislation and the Executive going far beyond that?
The case of the bump stock ban put into place by the Trump administration is a good example. The ATF, after decades of precedent that bump stocks weren’t illegal – which is consistent with the law, reinterpreted them to be completely the opposite on the orders of Trump, who wanted to save Republicans in Congress from having to vote on the issue in the aftermath of the Las Vegas mass shooting. In doing so, it suddenly made all the owners of these devices felons with penalties of up to 10 years in prison and $250k in fines.
Now, let’s say a future administration hast the ATF reverse this rule. Suddenly, it’s not a felony anymore!
The problem here should be obvious.
The National Firearms Act clearly states that bump stocks do not apply, and that has been the ATF’s view for decades until Trump decided he would save Republicans from having to vote to change the law.
Deference to administrative agencies for the purpose of administering programs is necessary, but it has to have limits. Presidents of both parties are more frequently turning to order agencies to “reinterpret” or create new rules to do what they want when Congress won’t because Congress is dysfunctional. I get that people who have strident policy views and partisan interests care about the ends and not the means, but the process is what gives legitimacy.
If you want to grant the Executive to make something a felony out of thin air and then say the courts should not have a say in the matter because Chevron difference says they have to, then you might as well put a crown on the President’s head on inauguration day. And partisans need to consider how this authority would be used by Presidents who will want to do things that you don’t like.
Edited to add: I don’t know enough about this FDA case to understand if/how this dynamic is working here.
@Modulo Myself:
BTW, if you look up “oxymoron” in the dictionary, this is the definition
@Andy:
The remedy for this was well known for over two centuries: Congress clarifies the legislation and slaps down the Executive. The argument you are raising takes as a starting point that the loony right wingers have rendered Congress dysfunctional and so cannot act to clarify its intent. We should not be making the Executive dysfunctional too in some bizarre effort to balance it out.
@MarkedMan:
That’s one remedy, yes, one that requires the Executive to sign the law or 2/3 of Congress to override a veto.
I think the courts also certainly do have a role to play, especially in the more egregious cases.
And I’m not arguing for making the Executive dysfunctional. This isn’t a binary choice – it’s about placing limits on the extent to which the Executive can abuse rule-making.
@Andy:
I just wanted to point out the relevant text of the law:
It’s very clear, and it also shows the problem with congress attempting to be experts — they drafted and passed legislation that was too specific. It prohibits a method of shooting many bullets in a short period of time, rather than the ability to shoot many bullets in a short period of time.
The remedy is clear — congress needs to act. Unless the ATF’s rule was based on other legislation (I am definitely not claiming expertise)
“Suddenly” is a very odd term to use for a rule-making process that is slow, doesn’t take effect immediately, and has many opportunities for judicial review.
No one went to bed one night at 10pm only to discover that the ATF changed the rules at 11pm and that jackbooted thugs were breaking down their door and hauling them off to jail at 2am.
Have read a fair bit about the risks of mifepristone. It is very safe. That doesnt mean zero risk. It means the risk rate is very low and it is safer than the alternatives. Risk of death with a delivery is roughly 3/10,000. Risk of death with Mifepristone is roughly 1/200,000. Risks of serious complications are at about the same ratio.
https://www.ansirh.org/sites/default/files/publications/files/mifepristone_safety_4-23-2019.pdf
The FDA was actually more stringent than most other drugs in the Mifepristone approval as there was a lot of opposition to it. However, as noted it has been used for roughly 25 years now. We dont need to guess about its safety as we have the best data possible, almost 25 years of use. I would also note that the court in Texas that ruled against the drug used as evidence anonymous comments on an anti-abortion blog.
Also, just for funsies, we really did have people using the horse paste version of Ivermectin to treat covid. The FDA did not lie, they were correct that Ivermectin is not appropriate for treating covid.
Steve
I’m not sympathetic to Thomas on any of this.
In signing on to Alito’s Dobbs Opinion, he let everyone know that he was open to take up challenges to previous Court decisions that codified rights to contraception access, and same-sex marriage. Now it’s here, he asked for it, and we’re going to pay for this.
And what a tenuous fig leaf this is.
Close to 30 states have now enacted highly or very restricted direct access to abortion. This is, as expected, not the end of the matter as radical Republicans across the country are working to federalize a ban on access to both direct abortion and medicated abortion. Returning this to the states was a nod and a wink to to movement conservatives.
As to this case? This is the Alito Court, and in the end I think The Court will run with a slap down of the FDA and attempt to make it much more difficult for women to obtain Mifepristone.
I believe that The Court can expect many more reproductive rights suits in their docket over the next few years.
@Gustopher:
The whole point is that according to the Chevron doctrine, the result should not be reviewable.
And “suddenly” because the rule-making process is not transparent and not open to debate—hence, it’s frequently called shadow legislation. Most people have no idea when a new federal rule gets enacted.
I agree, Chevron doctrine or no, I think this Executive overreach needs to be shot down. My principled view is that the Executive branch has grown too strong compared to Congress and the courts should not enable this.
@Andy:
So the Executive branch should match fecklessness with the legislative branch?
Perhaps the Executive appears to have grown “too strong” because the Legislative branch has grown increasingly dysfunctional (aka, “too weak to accomplish anything).
@Andy: If the Executive Branch has “grown too strong” then Congress is free to rein it in. Congress should have the option to defer the details to agency rule-making. It’s frankly a little weird that people think Congress can’t delegate within boundaries it sets.
It’s best to keep these functions in the democratically elected branches IMHO. Having the Court step in creates more problems than it solves (as we are currently seeing). The Court can and should strike down rules that are clearly beyond the scope of the statute, but should give benefit of the doubt to the agencies otherwise.
But also let’s be honest here. If SCOTUS invalidates FDA’s approval of misfepristone it’s not going to be because of differences in statutory interpretation; it will be because SCOTUS wants to write the law on abortion. It’s just naked judicial activism.
I second the lack of sympathy; these people offer the smallest of fig leaves to cover what they are doing.