April 23, 2023 | Reading Time: 3 minutes

Facing embarrassingly weak test case, has SCOTUS’ rightwing supermajority lost its nerve?

The current bid to yank mifepristone off the market is legal hackery whose sponsors deserve points only for shrewd venue-shopping.


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The Supreme Court ruled Friday that the abortion drug mifepristone will remain available while appeals play out on a lawsuit that sought to take the drug off the market.

The fate of mifepristone is critical to abortion access because medication abortions account for a majority of terminations in the US and most of these are carried out with a two-drug regimen that includes mifepristone. 

The fact that the high court granted a stay doesn’t automatically mean that the justices will vote to keep mifepristone available. However, it’s noteworthy that only two justices — Samuel Alito and Clarence Thomas — opposed the stay. 

Longtime court-watcher Adam Liptak of the Times sees a conservative majority losing its nerve

The far-right has been gearing up for a national assault on abortion access ever since Dobbs overturned Roe. However, they made the mistake of mounting an embarrassingly weak test case. 

An umbrella group of anti-choice doctors challenged the FDA’s 23-year-old approval of a safe drug, long after the statute of limitations for such disputes had elapsed.

These doctors don’t have legal standing to sue over a drug they don’t take and don’t prescribe.

The constitution restricts legal standing to those who have suffered a concrete and identifiable injury from the thing they’re suing over. The best the plaintiffs can say for themselves is that they’ve been injured because they might have to see patients who hypothetically suffered complications from mifepristone prescribed by other doctors.

It’s unclear why patients suffering from rare mifepristone complications would stampede to doctors who don’t do abortions, or why the possibility of more business for these doctors counts as an injury. 

The current bid to yank mifepristone off the market is an outrageous bit of legal hackery whose sponsors deserve points only for shrewd venue-shopping.

They got their case in front of diehard anti-choice judge Matthew Kacsmaryk, a veteran of the abortion wars, whose rulings are laden with contempt for abortion providers and strewn with anti-choice buzzwords.  

Dobbs disingenuously promised to restore peace and harmony to America by returning abortion laws to the states. It was obvious from the outset that this was a ruse.

National anti-choice groups have set their sights on abolishing abortion at the federal level, which is why they’re trying to get a regulatory do-over for mifepristone 23 years and 5 million abortions after the fact.

They claim to care about the safety of patients, but the real answer is that they’re trying to get mifepristone banned because they want to ban abortion nationwide. 

Mifepristone has been on the market for over 20 years. This progesterone-blocking drug is safer than Tylenol or Viagra. More than 5 million people have used it to end pregnancies in the US since it was approved by the FDA in 2000.

Study after study has shown that mifepristone is safe and effective, but rather than relying on volumes of scientific evidence, Kacsmaryk was instead swayed by anecdotes from the anti-choice doctors who brought the suit and blog posts. 

And there’s another mifepristone challenge waiting in the wings.

The anti-choice, anti-birth control group Students for Life has filed a citizen petition with the FDA claiming that the agency didn’t assess mifepristone’s impact on endangered species when it approved the drug.

The FDA did, in fact, assess data on mifepristone’s potential environmental impact during the approval process, as it does for all drugs. The group seeking approval supplied calculations that showed that amount of mifepristone that would find its way into the environment was trivial. Littering from the packaging was a bigger concern.

But the anti-choice movement isn’t about to let the truth, logic or the law get in the way of its all-out assault on reproductive freedom. 

The conservatives on the Supreme Court may not have found the right test case to ban abortion pills nationwide, but their agenda hasn’t changed. 

Lindsay Beyerstein covers legal affairs, health care and politics for the Editorial Board. An award-winning documentary filmmaker, she’s a judge for the Sidney Hillman Foundation. Find her @beyerstein.

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