In a 7-2 decision, the United States Supreme Court stayed a lower court ruling that the abortion medication, mifepristone, should be removed from use in the entire country. The Supreme Court decided to allow the drug to continue to be sold and used in states where abortion is still legal while the lower court case plays out.
The ruling concerns a Texas federal judge’s decision that the drug, which was approved by the Food and Drug Administration in 2000 and has been prescribed millions of times, is “unsafe” and that the FDA didn’t properly test the drug before approval. The district court’s decision rests on the 150-year old Comstock Act that prevents the mailing of “lewd” writing and any “instrument, substance, drug, medicine, or thing” that could be used to perform an abortion.
The FDA counters that they not only fully tested the drug in 2000, but that it’s been safely on the market for over 20 years without significant concerns. In the original approval, the FDA used clinical testing data from the United States and France, where the drug had already been in use for 12 years.
Recent studies by CNN and other news outlets have shown the reported deaths due to mifepristone are extremely low, at just 4 per million prescriptions. By contrast, penicillin is 4 times deadlier, and Viagra is 10 times deadlier. Neither of those drugs are being challenged in federal courts.
Democrats in Congress vow to fight on.
Senate Majority Leader Charles Schumer issued a statement, “Today’s decision shows how dangerously misguided and abhorrent the ruling by Texas District Court was. While this is a temporary victory, this is hardly the end of the fight to protect women’s health choices. Make no mistake, extreme MAGA Republicans will continue to pursue their nationwide abortion ban until they impose their anti-choice agenda on all Americans. Democrats won’t stop fighting and we will prevail.”
Republicans made it clear that the case in question wasn't about the safety of the drug or the protection of women but the banning of abortion outright. On Tuesday, before the decision was made, 150 Republicans filed an amicus brief with the Supreme Court supporting the banning of the drug. While the brief attempts to make the issue about how the FDA handled the approval of this drug, it’s 23 years after approval and only comes after hundreds of pro-life judges and 3 pro-life Supreme Court justices were put into the court system by President Trump. The brief makes no attempt to explain why Congressional Republicans waited nearly a quarter century to stop this “dangerous drug.”
In 2000, in a medical journal called BMJ, a summary of the U.S. approval is explained: “Amid bitter opposition from antiabortion groups, federal authorities announced that the abortion pill RU-486 has been approved for sale in the United States. The pill should be available in there within four to six weeks, according to Planned Parenthood.
“The Food and Drug Administration (FDA) approved RU-486 (mifepristone) for the termination of early pregnancy, defined as 49 days or less, counting from the beginning of the last menstrual period. The administration said it based its approval of mifepristone on data about safety and effectiveness from clinical trials in the United States and France. It is estimated that more than half a million women in Europe have used mifepristone since its debut in France 12 years ago.”
The article goes on to quote Dr. Benson Harer, Jr., then president of the American College of Obstetricians and Gynecologists, who said, "This decision (to approve mifepristone) is long overdue. Clinical trials on thousands of women here and in Europe clearly show that mifepristone when used with misoprostol for early abortion is very safe and effective."
Justice Samuel Alito was one of two justices, with Justice Clarence Thomas, to dissent from the majority opinion on Friday. His dissent is significantly based on his claim that the Court shouldn’t make these decisions without a full hearing. In emergency orders such as this one, it has been the Court’s habit to read the lower court documents, weigh the legalities and potential societal harm, and then render a decision. Alito, without irony, points to many times in the past when other justices have said the same thing, but in those cases, he didn’t agree. This time, since this case aligns with his philosophical opposition to abortion, he complains that a hearing should have occurred.
Alito goes on to argue that the defendants, being the drug company and the FDA, didn’t show that they would suffer irreparable harm if the order to stop the use of the drug were allowed to take effect. This flies in the face of the Supreme Court’s usually conservative habit of allowing everything to continue as before until the lower case plays out, unless the “injured” party can prove there will be irreparable harm if the existing practice continues. Since this case is rooted in protecting the mothers from harm, and this drug is safer than viagra, that argument falls flat.
The current case will be appealed while the drug continues to be available in states where abortion is still legal. It’s likely that no matter what the lower courts decide, the conservative-leaning U.S. Supreme Court sees this case again for full arguments, precisely as Justice Alito desires.
Bob Peryea
National Correspondent
The Kentucky Daily