Conservatives may lose the mifepristone battle but their war on abortion rights will continue

23 April 2023

The Supreme Court ruled Friday that the abortion drug mifepristone will remain available while appeals play out on a lawsuit that sought to take the drug off the market. The fate of mifepristone is critical to abortion access because medication abortions account for a majority of terminations in the U.S. and most of these are carried out with a two-drug regimen that includes mifepristone.

The fact that the high court granted a stay doesn’t automatically mean that the justices will vote to keep mifepristone available. However, it’s noteworthy that only two justices--Samuel Alito and Clarence Thomas--opposed the stay.

Longtime Supreme Court-watcher Adam Liptak of the New York Times sees a conservative majority losing its nerve.

The far-right has been gearing up for a national assault on abortion access ever since the Dobbs decision overturned Roe. However, they made the mistake of mounting an embarrassingly weak test case.

An umbrella group of anti-choice doctors challenged the FDA’s 23-year-old approval of a safe drug, long after the statute of limitations for such disputes had elapsed. These doctors don’t even have legal standing to sue over a drug they don’t take and don’t prescribe. The Constitution restricts legal standing to those who have suffered a concrete and identifiable injury from the thing they’re suing over. The best the plaintiffs can say for themselves is that they’ve been injured because they might hypothetically have to see patients who suffered complications from mifepristone prescribed by other doctors. It’s unclear why patients suffering from rare mifepristone complications would stampede to doctors who don’t even do abortions. Or why the possibility of more business for these doctors counts as an injury.

The current bid to yank mifepristone off the market is an outrageous bit of legal hackery whose sponsors deserve points only for shrewd venue shopping. They got their case in front of diehard anti-choice judge Matthew Kacsmaryk, a veteran of the abortion wars, whose rulings are laden with contempt for abortion providers and strewn with anti-choice buzzwords.

The Dobbs decision disingenuously promised to restore peace and harmony to America by returning abortion laws to the states. It was obvious from the outset that this was a ruse. National anti-choice groups have set their sights on abolishing abortion at the federal level, which is why they’re trying to get a regulatory do-over for mifepristone 23 years and 5 million abortions after the fact. They claim to care about the safety of patients, but the real answer is that they’re trying to get mifepristone banned because they want to ban abortion nationwide.

Mifepristone has been on the market for over 20 years. This progesterone-blocking drug is safer than Tylenol or Viagra. More than 5 million people have used it to end pregnancies in the United States since it was approved by the FDA in 2000. Study after study has shown that mifepristone is both safe and effective, but rather than relying on volumes of scientific evidence, Trump judge Matthew Kacsmaryk was instead swayed by anecdotes from the anti-choice doctors who brought the suit and blog posts.

And there’s another mifepristone challenge waiting in the wings. The anti-choice, anti-birth control group Students for Life has filed a citizen petition with the FDA claiming that the agency didn’t assess mifepristone’s impact on endangered species when it approved the drug. The FDA did, in fact, assess data on mifepristone’s potential environmental impact during the approval process, as it does for all drugs. The group seeking approval supplied calculations that showed that amount of mifepristone that would find its way into the environment was trivial. Littering from the packaging was a bigger concern. But the anti-choice movement isn’t about to permit the truth, logic, or the law, get in the way of its all-out assault on reproductive freedom.

The conservatives on the Supreme Court may not have found the right test case to ban abortion pills nationwide, but their agenda hasn’t changed.

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