For more than two decades, the pharmaceutical mifepristone, used in tandem with misoprostol, has been allowing Americans to have safe and effective medication abortions at home, saving the expense and complexity of clinical visits. Medically speaking, the compound has side effects so infrequent that it is statistically safer than common over-the-counter drugs like Tylenol.
In arguing before the U.S. Supreme Court yesterday that the Food and Drug Administration’s approvals of the drug should be reversed, lawyers for the shadowy group Alliance for Hippocratic Medicine were really making a moral argument, couched in the language of medical opposition.
To bring the suit in the first place, the organization’s doctors had made the ludicrous claim that they could be harmed by having to treat patients suffering from some of the drug’s vanishingly few serious side effects.
If this ended up being the court’s new theory of standing (inasmuch as one even still exists at all), then we could look forward to its equal consideration of a no doubt forthcoming lawsuit by ER doctors forced to contend with the devastating results of high-powered firearms flooding American neighborhoods.
Surely, if doctors can sue to block a safe and long-approved drug on the basis that they theoretically might have to deal with uncommon effects, then why not doctors who routinely deal with the frequent and well-documented ravages of, for example, a child accidentally putting .38 slug in his own stomach?
This might seem like some kinda gotcha hypothetical, but nothing makes the pill case sensible and the gun case not. The fact that this suit has made it to the Supreme Court is a result of one fact only: anti-choice entities have funded it and anti-choice jurists — notably Texas Federal Judge Matthew Kacsmaryk — have allowed it to progress, not out of any commitment to the public or even sensible legal analysis, but because they want to go even further in restricting abortion on purely ideological grounds.
The long-awaited victory in overturning Roe v. Wade, in which the conservatively co-opted high court strained to infill reasoning into a predetermined outcome, was never going to be enough. It should come as no surprise that Leonard Leo — the hyper-conservative Federalist Society activist who all but hand-picked Trump’s three conservative justices — is at the center of coordinating this new dark money push to restrict medication abortion.
At least it seems like this time they’ve gone too far, with a number of even the conservative justices in yesterday’s oral arguments questioning the doctors’ standing to bring the case at all (notably not the true die-hards, Clarence Thomas and Samuel Alito, for whom everything else takes a backseat to the dogma).
Aside from the standing question, the plaintiff’s tortured arguments should test any court’s tolerance for nonsense. In challenging the FDA’s approvals, they claim that the agency did not properly vet the safety and effectiveness of the drug, yet have been unable to present any evidence that the drug actually is unsafe, after more than 20 years of widespread use, or that the FDA cut any corners in signing off on its initial approval or its regulatory expansions.
There’s nothing to hook an argument to that makes sense. The justices should show the dark money the door.
