The Freedom From Religion Foundation is hopeful that the U.S. Supreme Court’s announcement today that it will hear an appeal over restrictions on medication abortion means the high court is poised to reverse an unfavorable lower court ruling.
The 5th U.S. Circuit Court of Appeals in August had upheld an injunction restricting mifepristone, part of a two-drug protocol used for medication abortion. The appeals court ruling limited abortion medication to just seven weeks of gestation, and also banned telemedicine and mail-order shipments for abortion pills. Mifepristone was first approved by the Food and Drug Administration (FDA) in 2000, and the federal government gradually made the drug more accessible. Abortion medication accounts for more than half of all abortions.
The appeals panel stopped short of completely undoing the original drug approval, stating that the plaintiffs had missed the window of opportunity to challenge that. The ruling so far has had a limited impact because the Supreme Court put the ruling on hold until the litigation is resolved. This decision was appealed both by Danco, the drug manufacturer, as well as the FDA in separate cases. The Justice Department argues that the appeals court ruling would have far-reaching consequences by disrupting the pharmaceutical industry and preventing the FDA from “fulfilling its statutory responsibilities according to its scientific judgment.”
This combined appeal puts the fate of mifepristone in the hands of the same court that last year overturned the nearly 50-year-old Roe v. Wade decision legalizing abortion care nationwide. The plaintiffs in the case are represented by the Christian nationalist outfit Alliance Defending Freedom, which is acting as legal counsel to anti-abortion advocates who judge-shopped U.S. District Judge Matthew Kacsmaryk, also a Christian nationalist extremist. Kacsmaryk notoriously issued the April ruling to ban mifepristone nationwide.
“This is a case where the plaintiffs have completely manufactured standing,” said FFRF Legal Director Rebecca Markert. “It is a particularly egregious abuse of the ‘case or controversy’ requirements that courts are supposed to enforce.”
In requesting Supreme Court review, the solicitor general persuasively argues that the anti-abortion challengers lack any injury and also that they failed to show that the FDA’s updates in 2016 and 2021 were “arbitrary and capricious.”
The plaintiffs are anti-abortion physicians and anti-choice organizations that claim injury based on manufactured and hypothetical scenarios. They argue, among other claims, that hypothetical patients who take mifepristone could potentially sue for malpractice after treatment. Anti-choice organizations contend that they’ll suffer financial and time loss due to the resources required to educate about the so-called dangers of mifepristone. None of these arguments is rooted in real injury. FFRF plans to file an amicus brief that focuses on these standing issues.
The claim that mifepristone is unsafe and should not be available via telemedicine or mail has no basis in fact. Medication abortion is extremely safe; the death rate is 0.0005 percent. For comparison, the risk of death from penicillin is four times greater and the risk of death from Viagra is nearly 10 times higher. Currently mifepristone is approved for up to 10 weeks of gestation in the United States, although the World Health Organization approves it for up to 12 weeks of gestation and it can be used for up to 12 weeks in most states.
“The Supreme Court needs to right this wrong,” said FFRF Co-President Annie Laurie Gaylor. “Ultraconservative judges should not supplant the rigorous drug approval process in order to impose their religious views about abortion on women and their doctors.”
The Freedom From Religion Foundation is a national nonprofit organization with over 40,000 members across the country. Our purposes are to protect the constitutional principle of separation between state and church, and to educate the public on matters relating to nontheism.
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