Chemical abortion drugs at the Supreme Court: What’s next

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The Supreme Court announced on Wednesday, December 13^th, that it will hear FDA v. Alliance for Hippocratic Medicine and Danco v. Alliance for Hippocratic Medicine, petitions in the landmark case in which a group of doctors are challenging the FDA’s reckless approval of mail-order abortion pills.

Two federal courts previously found that the FDA likely violated the law when it loosened safety standards on abortion pills and allowed them to be sent through the mail.

What happens now?

The Supreme Court will hear procedural challenges on two big issues:

Whether the pro-life doctors have standing to sue the FDA. Meanwhile, back in district court, three states have petitioned to join the lawsuit based on their independent standing.

Whether the 5^th Circuit decision that reinstated prior safety protocols that were in effect from 2000-2021 can be enforced until the litigation is complete (which could take years).

The Court will consider whether the FDA’s actions in 2016 and 2021 were “arbitrary and capricious,” a legal standard that means a federal agency’s actions should align with the evidence in front of them, in this case evidence that abortion drugs are inherently dangerous and should be subject to commonsense safeguards like only being prescribed at in-person doctor’s visits.

The Court is considering if the FDA broke federal law when it loosened safety standards in 2016 and made mail-order abortion drugs its permanent policy in 2021? However, a decision on the merits is unlikely since so far the parties have been primarily focused on what policy will govern during the trial phase.

What outcomes are possible?

The doctors have standing to continue the case, OR a different plaintiff has to step in.
The 5th Circuit’s injunction can take effect, reinstating Obama-era safety rules, OR the current policy (mail-order abortion drugs with no in-person doctor supervision) will stay in place during the trial phase.
There is evidence suggesting that the FDA broke the law, OR they didn’t break the law when making these policy changes.

When will the case be heard?

Arguments haven’t been scheduled yet, but the Court could issue a decision next year.

How did pro-life leaders and experts react?

Marjorie Dannenfelser, president, SBA Pro-Life America:

We’re overdue for a national conversation about the Democrats’ reckless agenda of mail-order abortion pills without medical oversight to young women and girls nationwide. They want to turn every post office and pharmacy in America into an abortion center, even in states with protective pro-life laws. Today, the reckless shipping of abortion pills endangers countless babies, women and girls. Who is looking out for the safety and health of these women and children? Under this policy, abusers, traffickers, even young teens can get these dangerous drugs without parents’ knowledge or consent. Most Americans, including 42% of Democrats, oppose mailing abortion pills without an in-person visit to a medical professional. They reject the narrative that DIY abortion is safe and are appalled by agencies like Biden’s FDA, which used COVID-19 as an excuse to make this a permanent policy. The FDA is supposed to safeguard health, not act like an arm of the abortion lobby.

Erin Hawley, senior counsel, Alliance Defending Freedom:

Every court so far has agreed that the FDA acted unlawfully in removing common-sense safeguards for women and authorizing dangerous mail-order abortions. We urge the Supreme Court to do the same. The FDA has harmed the health of women and undermined the rule of law by illegally removing every meaningful safeguard from the chemical abortion drug regimen. Like any federal agency, the FDA must rationally explain its decisions. Yet its removal of common-sense safeguards—like a doctor’s visit before women are prescribed chemical abortion drugs—does not reflect scientific judgment but rather a politically driven decision to push a dangerous drug regimen.

Katie Daniel, state policy director, SBA Pro-Life America:

“The Supreme Court and the entire country will hear the facts about Democrats’ dangerous mail-order abortion scheme. Working hand-in-glove with the abortion lobby, the FDA has misled the American people with its repeated claims that the abortion pill regimen is ‘safe and effective,’ all while they removed basic safeguards like in-person doctor supervision. This not only flies in the face of science and common sense, but the 5^th Circuit agreed it most likely broke the law. The people aren’t buying it, either – especially when they learn the FDA doesn’t track serious complications other than death.

“Under multiple Democrat administrations, the FDA has put politics before its duty to protect health and safety, with tragic results. Without oversight, abortion pills easily get into the hands of abusers and jealous exes. Not only have countless babies died, mothers have also died. The FDA is not above the law, and there must be justice for the harm they cause.”

Ingrid Skop, M.D., F.A.C.O.G., vice president and director of medical affairs at Charlotte Lozier Institute and a board-certified OB-GYN:

“As a practicing OB-GYN with over 30 years of experience, I have seen first-hand what the abortion pill regimen has done to my patients, both mother and child. As many as one in five women will suffer a complication such as hemorrhage or infection, and I have cared for many of these women in the ER. The Biden administration’s decision to weaken commonsense safeguards and remove doctors from the process shows they prioritize abortion on demand over the mother’s safety. I hope the Supreme Court realizes that the lives of many babies and women are at risk. The FDA must be held accountable for its callous actions.”