Supreme Court dismisses challenge to abortion pill, says pro-life doctors lack standing

The Supreme Court on Thursday dismissed an attempt by pro-life doctors to scuttle the abortion pill, saying they lacked standing to challenge the government’s approval of the drug.

In a unanimous ruling, the justices said the doctors’ moral objections to mifepristone may be valid but aren’t enough to show legal injury.

“For that reason, the federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions,” Justice Brett M. Kavanaugh wrote for the court.

Justice Clarence Thomas, who concurred with the ruling, was more blunt.

“So, just as abortionists lack standing to assert the rights of their clients, doctors who oppose abortion cannot vicariously assert the rights of their patients,” he wrote.

Access to the abortion pill has taken on more prominence since the Supreme Court’s 2022 ruling overturning the 1973 Roe v. Wade decision freed states to impose restrictions on abortion.

The ruling nullifies lower court decisions that threatened to upend the use of mifepristone. The drug is used for nearly two-thirds of abortions in America.

The Food and Drug Administration approved mifepristone in 2000, and the restrictions have been steadily easing.

Once accepted up to seven weeks into gestation, the drug is now used as late as 10 weeks. Requirements that the drug be picked up in person have been eliminated, and the number of in-person doctors’ visits has been cut.

The Biden administration said in court that the rules were relaxed after careful study to ensure they would not harm women’s health.

The American Medical Association said mifepristone is also used in cases of miscarriage and the restrictions made care for those women more difficult.

A federal judge found flaws in the FDA’s process and ruled that the initial approval was illegal.

The 5th U.S. Circuit Court of Appeals narrowed that ruling. It said too much time had passed to challenge the initial approval but more recent changes, such as distribution by mail and use later in pregnancy, could be challenged.

The pill remained available under a Supreme Court order while the case wound its way to the justices.

The justices didn’t address any big questions about mifepristone’s approval in their ruling. Instead, they said the case wasn’t properly before them because the challengers didn’t have standing.

“The plaintiffs do not prescribe or use mifepristone. And FDA is not requiring them to do or refrain from doing anything,” Justice Kavanaugh wrote. “Rather, the plaintiffs want FDA to make mifepristone more difficult for other doctors to prescribe and for pregnant women to obtain. Under Article III of the Constitution, a plaintiff’s desire to make a drug less available for others does not establish standing to sue.”

Erin Hawley, senior counsel with Alliance Defending Freedom, a religious liberty legal group that argued the case before the Supreme Court, said the ruling leaves open a future challenge from a plaintiff with standing.

Three Republican-led states — Missouri, Kansas and Idaho — have asked to intervene as challengers to the FDA in lower courts. They claim economic injury through Medicaid coverage of the abortion pill.

“The FDA recklessly leaves women and girls to take these high-risk drugs all alone in their homes or dorm, without requiring the ongoing, in-person care of a doctor,” Ms. Hawley said. “While we’re disappointed with the court’s decision, we will continue to advocate for women and work to restore commonsense safeguards for abortion drugs.”

Danco Laboratories, the producer of mifepristone, said the drug underwent rigorous approval and the court was right to reject the challenge.

“The decision also safeguards access to a drug that has decades of safe and effective use,” said Abigail Long, a company spokesperson.

President Biden said the justices’ decision not to roll back the use of the pill at this time doesn’t stop Democrats’ fight for reproductive rights.

“It does not change the fact that the right for a woman to get the treatment she needs is imperiled if not impossible in many states,” the president said, referencing the high court’s 2022 ruling sending the issue of abortion back to the states.

Since then, more than a dozen conservative states have moved to ban or strictly limit abortion.

“Let’s be clear: Attacks on medication abortion are part of Republican elected officials’ extreme and dangerous agenda to ban abortion nationwide,” Mr. Biden said.

Pro-life advocates said it was a “sad day.”

“Abortion drugs send approximately 1 in 25 women to the ER, according to the FDA’s own label, yet the abortion lobby gaslights women about the risks and seeks to block states from even collecting safety data,” said Katie Daniel, state policy director for Susan B. Anthony Pro-Life America.

Pro-life medical providers represented by ADF initially brought the case.

The providers say they have seen women harmed by taking the drug. The women go to emergency rooms for care, diverting resources and putting pro-life doctors’ conscientious objections at stake.

In his separate opinion, Justice Thomas said he agreed with the rest of his colleagues that the doctors lacked standing. He said he wanted to flag an even broader issue of allowing associations to sue on behalf of members.

Under current practice, he said, the court allows lawsuits by associations when an individual member would have been able to sue, but that distorts the usual expectations for a plaintiff’s ability to sue.

“Associational standing raises constitutional concerns by relaxing both the injury and redressability requirements for Article III standing. It also upsets other legal doctrines,” he wrote.