Perspectives: Pill case may be a bitter one for abortion rights

“I will give no sort of medicine to any pregnant woman with a view to destroy the child.”

Original Hippocratic Oath, 400 B.C.

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“[E]veryone who is for abortion has already been born.”

President Ronald Reagan

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“No woman can call herself free until she can choose consciously whether she will or will not be a mother.”

Birth control pioneer Margaret Sanger

Reproductive rights supporters are now placing their hopes on the U.S. Supreme Court for preserving continued access to the abortion pill mifepristone as the high court ponders what to do about it.

While the justices have given them a reprieve against a pair of restrictive lower court rulings, those expecting a favorable outcome from the jurists in the nation’s capital may be waiting for Godot.

A decision by the New Orleans-based 5th U.S. Circuit Court of Appeals in the middle of August has teed up the issue for the high court to review. In Alliance for Hippocratic Medicine v. FDA, — F. 4th—— WL 2023 5266026 (5th Cir. Aug. 16, 2023), the appellate court upheld most of the many restrictions imposed in a lower court ruling by an anti-abortion federal judge in Texas whom critics say was hand-picked by a group of physicians who claim to be offended by the availability of the medication. The pharmaceutical is part of a two-drug regimen to induce early-term abortions, as authorized by the Food & Drug Administration (FDA) in 2000, with amended regulations in 2016, and two more updates in the ensuing five years.

Pill perfection

The appellate panel, composed of two judges appointed by President Donald Trump and one by President George W. Bush, rolled back the lower court’s directive to remove the medication from the market.

But it did uphold two major restrictions: limiting its use to the first seven weeks of pregnancy and requiring in-person prescription by a physician. One of them, Trump appointee James Ho, would have gone even further and banned the drug altogether on grounds that the FDA erred 23 years ago in allowing it to be distributed, stating that scientists are “not perfect.”

However, the mifepristone pill, taken in combination with another medication, is pretty close to it. The pill has proven over the past two-plus decades to be very popular, used for about 50% of abortions with a 99.6% safety level, which comes very close to Judge Ho’s ideal of perfection.

But the judicial restrictions are stayed by virtue of a Supreme Court order that holds the Texas ruling and the appellate court decision in abeyance while the Supreme Court ponders whether to hear the case (No. 23 A 902), which requires acquiescence of four of the nine justices.

The drug’s manufacturer, Danco Laboratories, supported by the Justice Department on behalf of the FDA, formally appealed the 5th Circuit decision last Friday. The appeal argues both the merits of the case and the claimed lack of standing for the “Hippocratic” doctors, whom some critics deem to be engaged in hypocrisy, to bring the lawsuit.

The justices will be deciding whether to hear the case when the 2023-24 term begins on Oct. 2, the traditional first Monday in October.

The majority of the high court justices are, of course, opposed to abortion, as reflected in its decision last year in the case of Dobbs v. Jackson Women’s Health Organization, 142 S.Ct. 2228 (2022), which took away the constitutional right to abortion. That aversion casts a long shadow over the aspirations of abortion-rights advocates and organizations in the mifepristone litigation, whether materializing in a decision not to take up the case in the merits or deciding it as unfavorably, perhaps more so, than the pair of conservative Southern tribunals.

High hurdle

But there’s another high hurdle lurking behind that obstacle. It’s the court’s aversion of administrative agencies, a disdain that bolsters the position of the mifepristone challengers to the FDA approval of the drug.

The courts have, for decades, generally deferred to regulatory actions by administrative agencies, based upon the presumption that they have the experience, expertise, personnel, and pragmatic outlook that merits respect.

But not anymore.

Instead of deference, the current Supreme Court has engaged in a demolition derby of past doctrines, including the latitude extended to administrative agencies.

That was reflected in a pair of cases over the last two years involving environmental issues. In June last year, as the court eliminated the constitutional right of abortion in the Dobbs case and then barred state gun licensing laws in the case of New York State Rifle & Pistol Association v. Bruen, 142 S.Ct. 2111 (2022), the conservative majority of the court also struck down greenhouse gas emission standards promulgated by the Environmental Protection Agency (EPA), a regulatory creation of the Nixon administration, in a West Virginia v EPA, 142 S.Ct. 2587 (2022), and then it doubled down this spring with another ruling restricting the agency’s oversight of wetlands in Sackett v. EPA, 598 U.S. 651 (2023).

‘Major’ matter

The majority jurists have conjured up a new legal theory in its attempt to blunt the power of the agency: the “major question” doctrine. The concept allows the justices to overrule any agency decisions or other regulatory matters if they involve an undefined “major” issue, a somewhat vacuous precept since the Supreme Court supposedly does not engage in trifling issues.

But, wait, there’s more.

The Court’s docket for the upcoming 2023-24 term includes another blockbuster case that could well constitute a mortal blow to administrative agency authority. It has agreed in a case titled Loper Bright Enterprises v. Raimondo, No. 220451, to review a challenge to the Chevron doctrine, the venerable foundation for the tradition of giving wide latitude to those agencies.

Conservatives have chafed for years about the Chevron tenet since the development of that doctrine in a 1984 case titled Chevron USA v. Natural Resources Defense Council, 467 U.S. 837 (1984). But now, conservatives have the head count to spare on the high court to unravel it.

That would be cheerfully greeted by a broad swath of conservative big businesses in the forefront of resisting administrative agencies’ policies on such matters as consumer protection or regulation of financial institutions and investment markets, among others. Incidentally, the high court has on its 2023-24 docket another case, SEC v. Jarkesy, No. 22-859, which seeks to crimp the regulatory authority of the Securities and Exchange Commission in its efforts to combat fraud in the securities markets.

So, reproductive rights advocates face a daunting task in seeking to overturn the restrictions imposed on the mifepristone medicated abortion drug.

Minnesota matters

Although it has removed nearly all restrictions on abortions, Minnesota will feel the impact of the pending Supreme Court proceeding. A ruling limiting or prohibiting mifepristone may induce more women from abortion restrictive states to come here for other forms of reproductive health care, a path that already is becoming well-trod. But a reversal of the lower court decision could aid Minnesota women exercising their state constitutional abortion rights in a more convenient and safe way.

The high court may decide not to hear the case, leaving intact the prohibitory rulings of the lower courts. If it does proceed, it may amplify its aversion to abortion; or it may choose to undermine the authority of the FDA as part of its anti-agency bent.

For reproductive rights activists, advocates and their supporters, the outlook is grim and obstacles onerous facing the looming prospect of the delivery of a bitter pill from the high court.

PERSPECTIVES POINTERS

Other excerpts for Hippocratic Oath

Original Greek version: “With regard to healing the sick … I will take care that they suffer no harm or damage.”

Modern (Lasagna) version, 1964: “I will respect the hard-won scientific gains of these physician in whose steps I walk gladly shall share such knowledge of min with those who follow … avoiding the twin traps of overtreatment and therapeutic nihilism.”

Marshall H. Tanick is an attorney with the Twin Cities Law firm of Meyer Njus Tanick.

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