Mifepristone legal to distribute again

The Supreme Court, in an opinion released today, permanently reversed an earlier appellate holding against distribution of mifepristone, an abortifacient. It did so on the ground that an alliance of doctors, who don’t believe any authority should allow that drug, have no standing to challenge its approval. In practical consequence, no judicial authority will have any grounds to enjoin the distribution of mifepristone. So if a woman is desperate enough to take a chemical agent to destroy her unborn child, no court will stop her – because doctors who see the possible bad effects of that drug in their patients, have not themselves suffered a traceable or redressable injury. Now the only way to stop that drug is with your vote. More to the point, a unanimous Court will not allow anyone – especially a private person – to sue for another’s injuries.

How mifepristone got to the Supreme Court

Any case at law begins with circumstances that precipitated a certain act or acts. In that sense, this case really began with Dobbs v. Jackson Women’s Health Organization. Before then, the Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey cases governed. Under them, a woman – an adult woman – could seek an abortion at any time, for any reason or no reason. (But even under that regime, minor girls rated some protection from their bad decisions.)

Then, of course, the Supreme Court held 6-3 that abortion law would be a State matter, not a federal matter. Furious – and ideologically committed to depopulation – the Biden administration tacitly allowed women to order mifepristone – the abortifacient originally developed by Roussel-UCLAF under the name “Lot 486”) and now distributed by Danco Laboratories – through the mail. This order came through the Food and Drug Administration. Actually it came in December of 2021, before the Dobbs decision. Perhaps conservatives decided to wait until then, hoping to have a stronger case.

With Dobbs they had that stronger case – or so they thought. So they objected that sending a chemical abortifacient into a State with an abortion ban violates the Comstock Act. No matter, said Attorney General Merrick Garland; no State may ban such mailings. That he issued that opinion four days after Dobbs cannot be coincidental. In January of 2023, Garland specifically said one could order the drug through the mail, even to States that ban abortion.

A matter of intent

Garland said it came down to the inability to show specific intent to use mifepristone to cause abortion, because mifepristone has other medical uses. That is debatable, especially given the apparent clearance to women to use this regimen without consulting a doctor.

The pro-life community’s next rejoinder was to sue the FDA, seeking to overturn its very approval of the drug. That case (Alliance for Hippocratic Medicine v. FDA and another consolidated case) came before Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas (Amarillo Division). Judge Kacsmaryk enjoined the FDA’s approval of the drug, on grounds of patient safety. Immediately the FDA (and Danco Laboratories) appealed to the Fifth Circuit Court of Appeals. They argued that the Alliance had no standing, because neither it nor any of its members could show factual, traceable, or redressable harm. But the Fifth Circuit disagreed. They did modify the injunction, saying the statute of limitations on the initial 2000 approval of the drug had expired. But they enjoined two loosenings of restrictions that happened in 2016 and 2021.

Immediately Danco and the FDA ran to the Supreme Court for an emergency stay of the injunction – which they got.

The holding

Today the Court handed down a thirty-eight-page opinion. FDA v. Alliance and Danco v. Alliance (consolidated), Docket No. 23-235.

Justice Brett Kavanaugh wrote for a unanimous court that the Alliance, and its members, lack standing. Key to his reasoning is that the Allied doctors challenged the FDA’s regulation of parties other than themselves. Article III grants no standing to anyone to raise such a challenge.

Thus when a woman sees fit to take a dangerous sequence of drugs (first mifepristone and then misoprolol, a prostaglandin analog), any complication she suffers constitutes an injury to herself alone. Having to watch her suffer and possibly die despite “best possible” medical intervention is no skin off another doctor’s nose.

It would have been different had any hospital required a physician to prescribe mifepristone as a condition of remaining on staff. Of course, that’s not going to happen in the State of Texas! Even if it did, the Court might say, “So go practice at another hospital.” The only reason that might not happen is that the Certificate of Need program prevents any entrepreneur from establishing his own hospital to rival another in the same region. Nevertheless, no such requirement is happening today, nor is it likely to happen. So again – if a woman foolishly takes these drugs, no one else can do anything but watch.

Justice Clarence Thomas offered no solace in his concurrence. He held that even associational standing, not reached here, was subject to abuse. An abuse he wished to stop.

So mifepristone remains legally distributable, but…

Reaction by the leftist community does not seem to be “Ha, ha” or “Nyah, nyah,” but “Whew!” According to the American Family Radio program Washington Watch, Sen. Charles M. Schumer (D-N.Y.), Senate Majority Leader, apparently said:

The only reason this came down as it did, is that [the other parties] didn’t have standing. We’re not out of the woods yet.

That raises another question: what does the Senator fear? Can any other party have standing to challenge the FDA’s approval of mifepristone? Not likely – unless a woman dies of complications of its use, and her boyfriend, or family, sues for wrongful death. Even then a court might say, “If she wanted to risk suicide, the injury is to her alone, not to any survivor of her.”

But Schumer might have other reason to fear, and not dare to gloat. President Trump, once he returns to office, could appoint another Commissioner of Food and Drugs. That worthy might reopen the approval of mifepristone. Then, depending on his findings, he might reinstate the “in consultation with a physician” restriction. Or he might withdraw the drug from the market entirely.

Trump would also appoint another Attorney General, who then might opine that the Postal Service may not carry mifepristone through the mails into States that ban abortion. That worthy might even forbid any shipment of the drug through the mails, and cite the Comstock Act. That Act, still on the books, forbids the sending, through the mails, of any drug or device for “immoral purposes.” That was the then-current euphemism for abortion when Anthony Comstock had the act passed.

A longer-term solution

The problem with these measures, is that a Democratic President could reverse them immediately. Yet a newer Commissioner of Food and Drugs could deem the drug perfectly acceptable. With the precedent the Supreme Court set today, if he says it’s safe, none may gainsay him.

Thus far no one in Congress has had the imagination to remove a Cabinet officer on impeachment for, and conviction of, failure to execute the law. If Republicans were serious, they would have proceeded against Merrick Garland for unilaterally setting the Comstock Act aside.

The only way abortion – including chemical abortion by mifepristone or similarly acting abortifacient – goes away is by:

1. Arguing successfully in the federal courts on behalf of an unborn child (and charging murder in its death), or
2. Amending the Constitution to recognize all human life as deserving of protection.

CNAV has of course treated the subject of Human Life Amendments. But even these will not pass without another Great Awakening in America. That Great Awakening might be inevitable – in a generation or two, in which the woke-sters literally won’t be born. One can imagine Margaret Atwood screaming her last when she realizes that her abortion-on-demand ideology is a demographic dead end.

But if those concerned with the sanctity of life don’t want to wait that long, then they need to start persuading people to re-examine their consciences, and check their premises – as a certain Itinerant Preacher did, two thousand years ago, as depicted in the streaming show The Chosen.