Bureaucratic overreach on trial

If Americans learned anything from the pandemic, it was that politics and public health are far more intertwined than we thought. In an era in which “the science” on transgenderism, global warming, and life in the womb are hotly contested legal and policy topics, one group of doctors is challenging the Food and Drug Administration’s regulation of mifepristone (also called RU-486) and misoprostol, which taken together cause a chemical abortion and are often called “the abortion pill.” Yesterday, the U.S. Supreme Court decided to hear the case, which could result in real restrictions on access to the abortifacient drugs.

The suit is brought by the Alliance for Hippocratic Medicine, itself a broad-based coalition of pro-life and faith-based doctors represented by the Alliance Defending Freedom, a leading pro-life and religious liberty law firm. The Supreme Court has focused the case on the doctors’ argument that a 2016 FDA regulation from the Obama administration and a pair of 2021 regulations from the Biden administration put those presidents’ pro-abortion political agenda ahead of women’s health and safety.

Such a ruling could have significant practical effects on abortion access in the United States, as more than half of all abortions now occur using these chemical compounds. Under the pre-Obama rules, the drugs had to be prescribed by a doctor and picked up in person. Additionally, patients had to visit a doctor three times during the course of the abortion process to ensure the mother’s safety. (The way the two drugs work is that one essentially cuts off nutrients from the mother to the baby, and the second prompts the woman’s body to expel the dead child’s body like in a miscarriage.) The Obama/Biden rules allowed prescriptions from physician’s assistants and advanced practice nurses, prescriptions over the phone or internet, and delivery of prescriptions through the mail (done in the name of reducing human-to-human contact during the pandemic).

Practically, then, a ruling that the FDA prioritized politics could significantly cut back on access to the oft-used drugs.

Though the headlines will blare that the Supreme Court has taken an abortion case, this is really an administrative law case. The question has little, if anything to do with Dobbs, the 14th Amendment, or a woman’s “right to choose.” Instead, the legal question concerns the standards when doctors and other citizens challenge the scientific determinations of federal agencies. Here, the doctors assembled evidence of the potentially dangerous complications that can come with self-administration of the drugs independent of physical physician contact. Though the FDA insists the drugs are safe, that’s difficult to accept when the rules were adopted and promoted by presidents committed to a radically pro-abortion agenda.

The doctors’ case is well timed, arising as it does when the Supreme Court is already considering how much deference to give administrative agencies of the federal government when they exercise their supposed “expertise.” A majority of justices realize that our bureaucratic overlords in Washington are not the neutral platonic guardians envisioned by Woodrow Wilson and the progressives of 100 years ago but, in fact, are a ruling elite pushing an ideological agenda onto the American people. As a result, a certain skepticism of agency decisions is good and healthy for the body politic.

It’s possible the court could punt the case on procedural grounds, as urged by the Biden Department of Justice. Here the doctors are in some sense asserting the rights of their patients to safe drugs. The court has never been comfortable with third-party standing, the idea that someone besides the directly affected party can bring a case on their behalf. In earlier abortion cases, conservative-leaning justices have questioned whether abortion doctors can assert the constitutional rights of their patients using third-party standing. One presumes the principle of doctor representation should cut both ways, but conservatives could use this occasion to pare back the doctrine entirely. If they did so, it would represent a loss in the moment, but would also create a major hurdle for the abortion industry’s litigation in other cases.

The court has yet to schedule the case, but court watchers expect oral argument in the spring and a decision next summer. Regardless of the legal outcome, the intense media coverage may open women’s eyes to the potential dangerous complications associated with chemical abortions.