Two years after the United States Supreme Court overturned Roe v. Wade in a historical court decision, the Supreme Court ruled on another very important case in pro-life public policy. On June 13, SCOTUS ruled 9-0 on a legal technicality that the physician plaintiffs did not have legal “standing” in the case FDA v. Alliance for Hippocratic Medicine, 602 U.S. (2024). The case addressed the recent relaxation of safety guardrails that were set by the Food and Drug Administration (FDA) for the administration of the chemical abortion pills known as mifepristone and misoprostol. Sadly, the media is claiming a disingenuous victory, with many news reports thanking the United States Supreme Court for allowing access to the abortion pills to continue. However, the case was not dismissed on the merits— no decision was made about the claims that removing the FDA Risk Evaluation Mitigation Strategies (REMS) put women in imminent danger. The truth still remains that the abortion pills in question are not like Tylenol as so many advocates for the pills like to say. The pills have caused serious adverse effects and, at times, have killed women. This is why the pro-life movement must reassess the loss in the case against the FDA and increase our efforts to educate the public on the true danger of the pills and the reckless decision by the federal government to take away common sense safety measures.

 

In summary, the case before the Court, FDA v. Alliance for Hippocratic Medicine, was argued before the United States Supreme Court in March earlier this year. The case began in 2022 when a group of doctors, including doctors associated with the Alliance for Hippocratic Medicine, sued the FDA for the changes they made for access to chemical abortion pills. Who is the Alliance for Hippocratic Medicine?  The Alliance is a group of doctors aligned with the mission statement of:

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 “uphold[ing] and promot[ing] the fundamental principles of Hippocratic medicine. These principles include protecting the vulnerable at the beginning and end of life, seeking the ultimate good of the patient with compassion and moral integrity, and providing healthcare with the highest standards of excellence based on medical science”[1]

 

The issue in the case is whether the FDA was proper in removing the requirement that women must visit a doctor to receive chemical abortion pills. Visiting a doctor before receiving the abortion pills is vital as it could prevent a woman who may have an ectopic pregnancy or a blood disorder from experiencing severe health complications. Other issues addressed in the case were the FDA allowing the pill to be prescribed up to the 10th week of pregnancy and the FDA authorizing healthcare providers who are not physicians to prescribe the pills to women.[2]  One of the most significant claims the plaintiffs raised was that prescribers were no longer required to report all serious complications from the drugs.[3] The failure to report is reason to believe that many more women than those publicized have faced severe complications or even died from consuming the chemical abortion drugs that have often been promoted as being safe. Facially, the doctors’ arguments appear to be common sense, even to those who may not agree that the pills end a preborn baby’s life. Despite the sound reasoning for putting safety guardrails in place, the plaintiffs failed to survive a complicated question of having standing in the case. Losing a court case on a procedural technicality can be disheartening, but it hardly means that there cannot be future success in addressing the merits of an important issue.

 

Even if the arguments inside the Supreme Court chambers seemed to make pro-life attorneys cynical of an assured victory, what I witnessed outside the Supreme Court building on the day of the oral arguments in March were countless stories that prove that chemical abortion pills are indeed dangerous, and at the very least should be heavily regulated, if not banned. At the pro-life rally I attended on the Supreme Court steps, I heard countless stories of how women were forced to suffer alone the harrowing side effects of the pills, such as excessive bleeding and the shock of seeing the baby’s body in the toilet. Many doctors told stories about how complications from taking abortion pills are often not reported. According to the Charlotte Lozier Institute, if a woman needs urgent care after consuming chemical abortion pills, abortion advocates will persuade her to lie to doctors and hospital staff and say that she suffered a miscarriage.[4] Reportedly, emergency rooms have miscoded chemical abortion complications as miscarriages at a rate of 60%.[5]

 

These problems will only continue to persist for women as chemical abortions have been made so recklessly accessible in the past few years due to the COVID-19 pandemic and the closure of many abortion clinics in many states after the overturning of Roe. Internet searches for chemical abortion pills surged 162% higher than expected in the days following the leak of the Dobbs v. Jackson decision in May 2022.[6] Chemical abortion pills now account for 63 % of abortions across the United States.[7]

 

These stories of severe complications and the data on the increased use of chemical abortion pills are reasons why the fight must continue to regulate and ultimately stop the distribution of the chemical abortion drugs. Sadly, the FDA case might go down in history as a case law example of federal rules of civil procedure for first year law students and nothing more. Of course, abortion activists are also claiming a false victory that the Supreme Court is permissively allowing the unbridled distribution of the abortion drugs despite the Court not ruling on the merits of the case. That said, there are a number of paths forward in addressing the new chemical abortion frontier.

 

First, a simple resolution could be to find plaintiffs who can claim an injury: women who have been harmed by their use of chemical abortion drugs. Secondly, it is important for legislation to be passed and enforced to protect women and babies. In fact, Justice Kavanaugh seemed to make this suggestion in the opinion.[8] Texas has a law (SB 4) that prohibits the mailing of chemical abortion pills in our state and reinforces the original REMS (including in person doctor visits) enforced by the FDA.[9] However, Texas must find a way to effectively enforce our laws especially with the advent of international sellers and the growing chemical abortion resource “Aid Access”, an online portal where women can order abortion pills on the internet. States that already have pro-life laws should consider strong legislation to address the growing chemical abortion problem. Our federal government, even if not prepared to have a national law protecting life, should still be compelled to timely address how a woman’s safety is at risk if she orders pills online from an unknown source and ingests them alone in her bathroom.

 

If the law is a teacher, then policy-makers and pro-life legislators need to be astute students of the Court’s final opinion in FDA v. Alliance for Hippocratic Medicine to decide the best path forward in addressing the chemical abortion endemic.

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[1]The Alliance for Hippocratic Medicine, Mission Statement,  https://allianceforhippocraticmedicine.org/ (last visited June 6, 2024).

[2] Amy Howe, Supreme Court Appears Likely to Allow Abortion Drug to Remain Available, SCOTUS blog, March 26, 2024, at 3, https://www.scotusblog.com/2024/03/supreme-court-appears-likely-to-allow-abortion-drug-to-remain-available/.

[3]  Alliance Defending Freedom, The FDA Case, https://dm1l19z832j5m.cloudfront.net/2024-03/FDA-v-Alliance-for-Hippocratic-Medicine-2024-03-08-One-Pager.pdf, (last visited June 6, 2024).

[4] Charlotte Lozier Institute, Fact Sheet Risks and Complications of Chemical Abortion, https://lozierinstitute.org/fact-sheet-risks-and-complications-of-chemical-abortion/ (last visited June 6, 2024).

[5] Id.

[6] Jen Christensen, Internet Searches for Medication Abortion Reached Record Highs After Supreme Court Leak, CNN, June 30, 2022, https://www.cnn.com/2022/06/30/health/medication-abortion-internet-searches-study/index.html.

[7]  Rachel K. Jones and Amy Friedrich Karnik, Medication Abortion Accounted for 63% of All U.S. Abortions in 2023 --- An Increase from 53% in 2020, Guttmacher Institute, March 2024, https://www.guttmacher.org/2024/03/medication-abortion-accounted-63-all-us-abortions-2023-increase-53-2020.

[8] FDA v. Alliance for Hippocratic Medicine, 602 U.S. (2024) at 20.

[9] Texas Health and Safety Code, 171.063.

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