SCOTUS Decision Allows Mail-Order Abortions to Continue

Yesterday the Supreme Court ruled in favor of the FDA in Food and Drug Administration v. Alliance for Hippocratic Medicine. The Court found that the AHM lacked standing to challenge the FDA’s regulatory changes to the abortion drug mifepristone. The decision was unanimous and Justice Kavanaugh wrote the opinion.

From the drug’s approval in 2000 until 2021, mifepristone had to be dispensed in person. In 2021, the FDA removed the in-person requirement, purportedly in response to COVID-19 (but with no reversal in policy since the pandemic’s fade). That change opened the floodgates to abortion by mail. Women no longer receive medical exams for dangerous contraindications like ectopic pregnancy. For that matter, they aren’t even verified to be women — male abusers looking to shirk the responsibilities of fatherhood can easily purchase abortion drugs online and slip them into women’s drinks, fooling them into thinking it’s a natural miscarriage.

Pro-life physicians sued to reverse the FDA’s 2021 change. The Supreme Court never reached the merits of the FDA’s decision. Instead, the Court determined that the physicians lacked standing to sue. “To establish standing, as this Court has often stated, a plaintiff must demonstrate (i) that she has suffered or likely will suffer an injury in fact, (ii) that the injury likely was caused or will be caused by the defendant, and (iii) that the injury likely would be redressed by the requested judicial relief.” The Court noted that “unregulated parties” typically lack standing.

The plaintiffs argued that they were injured by the increased volume of emergency room patients suffering from mifepristone complications. But the Court countered that “the plaintiff doctors have not shown that they could be forced to participate in an abortion or provide abortion-related medical treatment over their conscience objections,” because “federal conscience laws definitively protect doctors from being required to perform abortions or to provide other treatment that violates their consciences.”

Although anti-abortion people do not normally have conscience objections in the setting of caring for women who’ve been harmed by abortion (and, indeed, operate numerous programs for that population), the Court’s affirmation of pro-life conscience rights is a welcome silver lining. Pro-abortion politicians may be less inclined to attack conscience laws if the result would be to reopen the standing issue.

The Court also dismissed the doctors’ position based on “diverting resources and time from other patients to treat patients with mifepristone complications; increasing risk of liability suits from treating those patients; and potentially increasing insurance costs,” deeming those injuries too indirect to support standing.

Justice Kavanaugh recognized that, by this logic, “it may be that no one would have standing to challenge” the FDA. He left that question unanswered. Perhaps a victim of coerced abortion by fraud would have that standing. But it will take years for that case to reach the Supreme Court, with countless babies dying in the meantime, and there’s still a risk she’d be rejected as an “unregulated party.”

The better approach, Justice Kavanaugh suggested, is for pro-life Americans to “present their concerns and objections to the President and FDA in the regulatory process, or to Congress and the President in the legislative process.”

The stakes of the November election just got even higher.