The justices didn’t seem to buy the tenuous theory that would allow the doctors to sue the FDA over medication abortion.
The theory at the core of the lawsuit filed by the Alliance for Hippocratic Medicine and a handful of anti-abortion doctors who are challenging the Food and Drug Administration’s approval of the abortion drug mifepristone is that they have been harmed — or will be harmed — by the FDA’s actions.
The doctors are not claiming that they’ve been hurt by taking the drug or prescribing it, which none of them do. Instead, their theory goes something like this: Mifepristone is dangerous, and pregnant people who take the drug are bound to have serious complications. When they do, they’ll probably go to an emergency room, which could be in a hospital where one of the anti-abortion doctors works. As a result, the doctor could be pulled from regular patient duties to deal with the mifepristone-related emergency, forcing them to play some role in the provision of abortion and causing emotional trauma.
The claim is so tenuous that during oral arguments in the case on Tuesday, not even the anti-abortion majority of the U.S. Supreme Court seemed to buy it as a theory that would give the group standing to sue the FDA. The justices appeared disinclined to rule in a way that would narrow access to medication abortion, at least for now.
“FDA approved mifepristone based on the agency’s scientific judgment that the drug is safe and effective,” U.S. Solicitor General Elizabeth Prelogar told the court. “It’s maintained that judgment across five presidential administrations, and millions of Americans have used mifepristone to safely end their pregnancies.” The alliance “may not agree with that choice,” she continued, “but that doesn’t give them … a legal basis to upend the regulatory scheme.”
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