The stakes of a Supreme Court case concerning abortion-inducing pill could not be higher | Opinion
For the first time since the Supreme Court overruled Roe v. Wade, it now has two cases on its docket concerning abortion rights. In late December, the court granted review in a case about access to mifepristone, a drug used to induce abortions. And on January 6, the court granted review as to whether a federal law that requires emergency rooms to provide abortions when medically necessary preempts an Idaho law that prohibits abortions except when essential to save the pregnant person’s life.
Both of these cases should be easy under well-established legal principles. But the hostility of the court’s conservative majority to abortion makes the outcomes uncertain. The hope must be that the justices will follow the law and not their strong personal feelings against abortions.
Opinion
The stakes of the case concerning mifepristone could not be higher. Over 50% of all abortions in the U.S. are medically induced. In states that have greatly restricted abortions, including some that have prohibited virtually all abortions since the court overruled Roe v. Wade, medically induced abortions have taken on even greater importance. Even in states like California where abortion is legal, medically induced abortions provide a preferable, safe alternative to surgical abortions for many women.
The federal Food and Drug Administration approved mifepristone as part of a two-drug protocol to induce abortions in 2000. A very conservative federal judge in Texas issued an order last year stopping the distribution of mifepristone everywhere in the country — the first time a judge has ever overturned the FDA’s approval of a drug.
A conservative panel of the U.S. Court of Appeals for the Fifth Circuit said that the judge was wrong in stopping all use of mifepristone after it had been on the market for 23 years, but the appellate court overturned fairly recent FDA actions to make the drug more easily available. In 2016, the FDA said the drug could be used until the tenth week of pregnancy rather than just the seventh week, reduced the number of required in-person clinical visits from three to one and allowed non-physician healthcare providers licensed under state law, such as nurse practitioners, to prescribe and dispense mifepristone. It also reduced the dosage from 600 mg to 200 mg. In 2021, the FDA eliminated the requirement that mifepristone be administered in person — the only drug with such a requirement.
But the Fifth Circuit overturned these changes, concluding that they were “arbitrary and capricious” on the part of the FDA. This should be a very easy case for the Supreme Court. To begin with, no one has standing to bring this lawsuit. In order to sue in federal court, a plaintiff must have personally suffered an injury. An organization, like the plaintiff in this case, may sue only if it has members who have been harmed. But no one is hurt by the FDA’s making mifepristone more easily available.
The court should uphold the FDA’s 2016 and 2021 actions. In light of the overwhelming evidence as to the safety of mifepristone, it is impossible to say that the FDA’s actions were arbitrary and capricious.
The other case involves a federal law, the Emergency Medical Treatment and Labor Act. It requires hospitals receiving Medicare funding to offer “necessary stabilizing treatment” to pregnant women in emergencies, including abortions. A federal court ruled that the federal law, when it applies, takes precedence over an Idaho statute that prohibits virtually all abortions.
Again, this should be an easy case. One of the most basic principles of law is that federal law takes precedence over state law; if there is a conflict, state law is deemed preempted.
On the law, these cases could not be easier. But this is the court that overruled Roe v. Wade in 2022. There are six conservative justices who have consistently opposed abortion rights.
In overruling Roe, these justices said that the issue of abortion should be left to the political process and not the courts. Hopefully, they will follow this approach and not now be so hypocritical as to impose their views. But given their opposition to abortion, there is every reason to worry.
Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law.
