OPINION:
On March 26, 2024, Erin Hawley, senior counsel for Alliance Defending Freedom and Professor at Regent University School of Law, will argue one of the most important cases at the Supreme Court this term — and certainly the most important abortion case since Dobbs.
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The case, FDA v. Alliance for Hippocratic Medicine, involves the FDA’s recent decisions to strip away a variety of safety requirements associated with so-called “chemical abortion.” Chemical abortion occurs through the taking of drugs that deny the babies food and initiate contractions that lead to their expulsion. No surgery, no suctioning — just drugs.
For abortion proponents, chemical abortion is a dream come true. Women seeking an abortion can obtain one without ever leaving their house. For pro-life advocates, chemical abortion is an absolute nightmare. Vulnerable women can abort their children without ever talking in person to another human.
The saga began in 2000 when the FDA approved the “abortion pill.” The process involves taking two different drugs: mifepristone, which is taken first and blocks nutrients from reaching the baby, and misoprostol, which induces contractions to expel the unborn child from the mother’s womb.
Recognizing the serious risks associated with taking these drugs, the FDA required certain conditions of use, including limiting it to seven weeks’ gestation and requiring three in-person visits with a licensed physician. The first two visits were to administer the drugs, and the third, which occurred 14 days later, was for follow-up care by a licensed doctor to “confirm[ ] by clinical examination or ultrasonographic scan” that the baby was fully expelled. This last visit was particularly critical, given that up to 7% of women who take mifepristone will require surgery “to stop bleeding” or to complete the abortion.
In 2016, the FDA made substantial changes to mifepristone’s conditions of use, including eliminating the second and third in-person visits, allowing non-physicians to prescribe the drug, and eliminating the obligation of doctors to report “adverse” events to the FDA. Five years later in 2021, the FDA concluded that the single remaining in-person visit was “no longer necessary.” With a stroke of a pen, the FDA enabled women to obtain a complete abortion “by mail.” Several OB/GYNs and emergency room doctors challenged the FDA’s actions as violating the Administrative Procedures Act. They are right, and the Court must rule accordingly.
Reigning in the administrative tyrannical state
While the legal issues making up the case are many and complicated, the key principle behind them is not: How much discretion should an unelected federal agency have over the lives of American citizens?
Federal agencies wield alarming power in our modern political world. Aptly deemed the “fourth branch” of government, these agencies (e.g., the EPA, SEC, HHS) often play lawmaker and law enforcer (and sometimes judicial officer) — the very definition of tyranny according to the Framers of our Constitution.
Given this reality, many legal scholars and judges have written about the dangers that the Administrative State poses to the basic framework set forth by the Constitution. The Constitution establishes a federal government with limited powers. That government is organized in three branches that have separate but overlapping functions so no branch can accumulate too much power. This basic structure — perhaps even more than the Bill of Rights — is what preserves our liberty as American citizens.
With federal agencies, though, this structure is flipped on its head.
Rather than passing laws itself, the Administrative State regime allows Congress to abdicate its legislative function by “delegating” broad authority to federal agencies — all located in the executive branch — to craft rules over specific areas, like food and drugs. But the power to make laws that restrict the actions of free people is no small thing; on the contrary, “an excess of lawmaking” was a “disease” over which the Framers went to great pains to prevent.
The treatment prescribed by the Framers to prevent this disease was to make it extremely difficult to pass laws. Accordingly, they vested the power to make laws in Congress — a body that had two houses, who were subject to different electorates on different schedules, and required the president’s signature. This cumbersome process ensured due deliberation, accountability, predictability, and the protection of minority views.
Not so with the FDA. The FDA passes “laws” quickly in furtherance of the policy goals of a single elected person, the president — and often without much evidence or any deliberation.
And that’s exactly what happened here. Here, the FDA made sweeping changes to the means by which women can obtain a chemical abortion. In 2020, the FDA itself acknowledged that it was “necessary” for women’s safety to at least preserve the one remaining in-person office visit. But then, just one short year later, the FDA decided that seeing a doctor in person was no longer necessary. As justification, the FDA claimed that recent scientific literature was not “inconsistent” with its decision.
In other words, the FDA had absolutely no evidence to support the notion that the change would be safe — something the Administrative Procedures Act requires. What’s more, the FDA relied on the fact that there were fewer reports of serious complications in recent years. But this was after the FDA eliminated the reporting requirement in 2016.
In making these changes, without evidence, to the chemical abortion regime that terminates the lives of hundreds of thousands of babies each year and sends thousands of women to the emergency room, the FDA violated the law.
Upholding the value of life
Even more important than upholding the rule of law, however, is upholding the value of life. This case is proof of how little our society values life. The fact that women can obtain an abortion “by mail” without ever having to talk to another person, let alone a doctor (whom abortion proponents have proclaimed is an essential party to this “women’s-health” decision) is, in a word, astonishing.
Lies to the abortion industry are like water to fish. They are everywhere — and they are essential for its survival.
One of the greatest lies fueling the abortion industry is that the child inside the womb isn’t a human person imbued with life or dignity or rights on any scale. This lie succeeds because women seeking abortion often never see inside their womb or hear their babies’ heartbeats. Ultrasounds change that — and when women see their babies and hear their heartbeats, they often change their minds and choose life.
But it’s not just ultrasounds that bring humanity to the unborn child. Another way to acknowledge the presence of human life in the womb is by requiring an in-person visit with a doctor before a woman can abort her child. By consulting with their doctors, women are forced to make several additional decisions as they contemplate this one life-altering one. For example, women contemplating abortion must first set aside time to see a doctor, set up an appointment, and interact with various healthcare professionals. These decisions force some measure of accountability and buy women at least a little bit of time — and therefore contemplation — in navigating the various emotional, moral, and logistical aspects of obtaining an abortion or, alternatively, considering life.
Not so with abortion by mail. Under this scheme, a woman can abort her child without ever seeing her baby or talking to another human, let alone her doctor. No extra decisions, no extra contemplation, and no discussion. The pills show up in the mail at her front door, perhaps along with the woman’s dietary supplements.
The clear implication of this is that if the procedure does not even require a doctor, how serious can it be? This is the lie that abortion by mail is built on, and it’s a lie that must be stopped. Is termination of a human life not worth at least encouraging a few extra hours, a little more consideration, and an in-person conversation with a doctor?
On that note, the abortion-by-mail regime not only devalues the life of the child. It also devalues the life of the mother.
Abortion proponents used to describe abortion as something that should be left to a “woman and her doctor.” Apparently that is no longer the case. Women can now make one of the most monumental decisions of their lives without ever talking with another person, let alone their doctor.
Women deserve better. This is especially true given that the FDA acknowledges that around 4% of women who take the abortion pill will end up in the emergency room with complications. That 4% represents thousands of women who will rush to an emergency room to receive treatment by doctors who don’t know them or their medical history.
Again, women deserve better. The Court must protect them and their children.
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S. Ernie Walton is an Assistant Professor at Regent University School of Law in Virginia Beach, VA. The views expressed in this article do not necessarily reflect those of Regent University.
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