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Battle continues over abortion pill

For almost a quarter century, the Food and Drug Administration has persistently bent the rules to approve the mifepristone-based chemical-abortion pill known as RU-486 on a fast-track basis and then strip away safeguards regarding its distribution, sometimes using pretexts such as the Covid pandemic. It has done so while playing bureaucratic games to evade judicial review and disregarding the 176-year-old federal statutory ban on sending abortion drugs in the mail. At the same time, the Justice Department under Merrick Garland seeks to weaponize the FDA’s approval to preclude states from enforcing their own laws. This campaign has been a priority of the past three Democratic administrations, but while the Clinton and Obama administrations sought to promote the pill on their way out the door, the Biden administration has made it a continuing priority.

The goal of this campaign has been to create facts on the ground that nullify the law. In that, it has largely succeeded thus far — and will face no immediate threat with the Supreme Court having just dismissed a challenge to the pill’s approval for lack of standing. According to the pro-abortion Guttmacher Institute, medication abortions have increased steadily with each regulatory shift: The pill was used in 17 percent of all U.S. abortions at the end of the Bush administration, but that increased to under a third a decade ago, to a little over half on the eve of the Dobbs decision, and to nearly two-thirds in 2023. That shift has made the barbarity of abortion less visible and harder to police. It has even allowed abortion advocates to finally admit, in court filings, the health risks to mothers of surgical abortions — now that they are promoting an alternative.

A legal challenge to the pill made it all the way to the Supreme Court but failed. The FDA succeeded in running out the clock on challenges to the pill’s approval in 2000 in part by sitting on it internally for 14 years. As the case reached the Court, it related only to more recent reductions of the regulatory requirements, such as eliminating in-person consultations. The Court, in a unanimous opinion written by Justice Brett Kavanaugh, concluded that doctors who did not prescribe the pill and were under no requirement to do so did not have standing to sue. It therefore did not examine the legality of the FDA’s actions or the validity of the Justice Department’s claims of preemptive authority. Those remain judicially unresolved.

This is a defensible, if disappointing, outcome. The Court’s job is to resolve disputes between parties with a stake in the case, not to sit as a general reviewer of the legality of all government action. The Court’s standing doctrines have not been terribly consistent over the years; as recently as its June Medical decision in 2020, it allowed pro-abortion doctors to assert standing to represent the interests of their patients. But the Court recognized, properly, the imprudence of creating a general right of doctors to sue whenever any loosening of any government regulation could arguably cause injury or illness that requires medical attention. Justice Clarence Thomas, as is his wont, wrote separately to note that the Court should seek more consistency by rethinking some of its unduly broad standing rules.

The silver lining in the decision is that the Court emphasized — without dissent — that pro-life doctors cannot be forced to prescribe abortion pills and that doctors whose conscience rights were violated would have standing to sue. In a passage that may bode ill for the Biden administration’s position in its effort to override Idaho’s abortion ban by means of the Emergency Medical Treatment and Labor Act’s supposed national standard for emergency-room care, the Court concluded that “EMTALA does not require doctors to perform abortions or provide abortion-related medical treatment over their conscience objections because EMTALA does not impose obligations on individual doctors.” There’s a potential shell game here — in theory, EMTALA is simply a funding condition on hospitals, not a regulatory rule applied to doctors — but at minimum, the Court has enshrined the solicitor general’s situational concessions on the conscience point in a unanimous opinion.

The bad news is that the Biden administration’s persistent strategy of raising standing issues as a defense to illegal executive action was, in this case, rewarded. But what the executive branch giveth, the executive branch can taketh away. A pro-life FDA could reconsider some of its past errors. A pro-life Justice Department could take seriously the binding nature of federal statutes, thus safeguarding states’ ability to protect unborn lives. A restrained judiciary simply means that the real work often falls to the democratic branches. If that means that pro-lifers have to take the long view, the movement has a lot of practice.

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