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Reproductive Rights News, Part I: Mifepristone Looks Safe for Now

The Supreme Court conducted oral arguments yesterday in the case that would ban most uses of mifepristone. The SCOTUS-argument crystal ball is invariably murky, so you don't want to reach conclusions that are too firm, but the general consensus is that the Supremes will overrule the Fifth Circuit, likely due to the plaintiffs not having standing to sue.

Lawyer-reader A.R. in Los Angeles, CA listened to the oral arguments, and was kind enough to do a write-up for us:

Key Takeaway: It doesn't appear from the questions that a majority of the Supreme Court is prepared to upend decades of FDA regulatory drug approval processes, even if most of the justices oppose abortion.

As we suspected, the main question was standing, and a majority of the Justices grappled with whether the plaintiffs satisfied any of the elements of Article III standing. And while it's always risky to try to read the tea leaves, I'm going to go out on a limb and say that it could be 7-2 in favor of reversing the Fifth Circuit and dismissing the case for lack of standing. The only potential wild card for me was Chief Justice John Roberts—some of his questions indicated a willingness to expand standing to include a "chain of probability" leading to a cognizable injury. He also asked why the Court can't give these plaintiffs relief without affecting the entire FDA regulatory scheme.

There seemed to be three buckets of standing concerns, and some of the justices fell into more than one camp. As a reminder, standing consists of these elements: (1) cognizable, imminent injury (not general or speculative or attenuated); (2) caused by defendants; and (3) relief sought will redress the claimed harm.

Bucket 1: Injury is too speculative or attenuated. Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson focused on the lack of any actual injury on the plaintiffs' part. And Justice Amy Coney Barrett agreed that the two doctors who alleged that they had to help women despite it being against their beliefs did not specifically allege any assistance that was due to the use of Mifeprex. They also addressed organizational standing and didn't agree that the group's claim of "diverted resources" was greater than that experienced by the general public. Roberts also was not convinced about organizational standing.

Bucket 2: The plaintiffs can already avoid any injury by use of the conscience protection statute. Justices Barrett and Brett Kavanaugh pointed out that these doctors don't really have a cognizable injury because a different federal statute allows them to opt out of such treatment if they have a conscientious objection. And the government conceded that such laws apply and that these doctors cannot be compelled to perform abortions or treat women who have had a medication abortion.

Bucket 3: The relief sought is too drastic for the claimed injury. Justices Neil Gorsuch and Jackson were particularly troubled that the remedy sought by these few doctors, who may or may not be called upon to treat women with complications from a medication abortion, was a national ban on the drug. Justice Gorsuch seemed to have an even broader agenda in that he wanted to use the standing issue to send a message about judges issuing nationwide injunctions. They seemed to be trying to craft a much narrower remedy, assuming the standing requirements are met.

There were the usual loaded questions from Samuel Alito and Clarence Thomas. An example from Alito was along the lines of, "So, if no one has standing, the FDA can do whatever it wants and there's nothing anyone can do?" Solicitor General Elizabeth Prelogar deftly handled such hyperbolic inquiries by calmly pointing out that if a previously-approved drug proves to be dangerous, the FDA can, and has, taken it off the market for safety reasons. She also reminded the Court that people sue drug companies all the time, alleging harm from their products—tort claims are alive and well and unaffected by this case. Thomas really wanted the parties to address the Comstock Act, but both the government and the attorneys for Danco Laboratories (which makes Mifeprex) said the issue was not raised in this case, and none of the other justices seemed to want to go down that road.

The justices spent virtually no time on the merits of the case. Justice Barrett asked about 2016 changes to increase the gestational age from 7 to 10 weeks coupled with the removal of the in-person requirement and the claim that the combination of those two changes has led to more errors in calculating patients' gestational age. The Solicitor General reminded the Justice that even before the changes to the in-person requirement, there was no requirement for an ultrasound. So, doctors were only asking questions to assess the appropriateness of a medication abortion, which they can easily do via video or telephone. Removing the in-person requirement did not make it any more likely that gestational age would be calculated incorrectly.

One interesting side note: all the lawyers arguing for the parties were women. That's probably not surprising given the subject matter, but it's still a rare occurrence at the Supreme Court.

If you would also like a layperson's opinion, we're happy to deliver. Here's reader R.M.S. in Lebanon, CT:

I listened to the Supreme Court oral arguments in FDA v. Alliance for Hippocratic Medicine while driving. I am not an attorney, but a blue-collar layperson, and I wanted to share my thoughts about this case from what I heard.

First, I don't think this case should ever have made it to the Supreme Court. The plaintiffs in the case are a group of anti-abortion-rights medical personnel who claimed they might be compelled to administer an abortion on an emergency basis if they treated a patient who was harmed by mifepristone. All of the justices except Samuel Alito sounded very skeptical of this argument. When they asked the plaintiffs' attorney for an example of this ever happening, she could not cite a single instance. Federal law already protects medical providers from performing abortions against their will. The plaintiffs need to establish they were harmed in some way by the FDA approval of mifepristone to establish standing. They want the court to rule based on speculative situations they believe may occur but haven't occurred. This is why I believe the Supreme Court will dismiss their claim based on a lack of standing and it should never have gotten this far in the legal process.

Secondly, I think this case represents a big shift in strategy from the anti-abortion-rights movement. They realize that fetal personhood laws are unpopular except in the reddest of red states. They were rejected even in red states like Kansas and Ohio since Roe v. Wade was overturned. Instead, they are borrowing a strategy from the anti-vaccination movement. Anti-vaxxers like to selectively cite data about vaccines in order to stir up fear and opposition to them. For example, if a vaccine injures 70,000 patients, they will cite the injuries to justify their opposition, but will ignore the other 120,000,000 patients who received the vaccine with no side effects. This is similar to what the plaintiff in this case argued about mifepristone. She claimed that she was trying to protect women from injuries caused by the medication, but she did not acknowledge all of the women who have taken it with no harm to their health. Most of the justices seemed skeptical about challenging the FDA's evaluation of the medication.

Going forward, I think we should expect the anti-abortion-rights movement to frame their activism as a way to protect women. Most of them seem to realize a push for a national fetal personhood law would be politically unpopular and backfire on them.

Thanks, A.R. and R.M.S.!

In short, it sure looks like this particular battle is over, but definitely not the war. A.R. later wrote in to add: "I'm guessing these groups will now scour the country to find a woman willing to say she was harmed by taking Mifeprex and we'll see a new case filed in short order. This campaign by these groups and their allies on the Court is by no means over." (Z)

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