By Noah Rothman
Wednesday, March 27, 2024
Mifeprex works by cutting off the supply of hormones that
maintain the integrity of the uterus during pregnancy, leading to the eventual
expulsion of a growing fetus. But the drug’s users may experience
complications, some of which can be quite serious. In arguments before the
court, Alliance Defending Freedom senior counsel Erin Hawley, the wife of
Senator Josh Hawley, argued that the FDA began unlawfully deconstructing
critical safeguards that previously restricted access to chemical
abortifacients, including lifting obligatory in-person doctor visits to ensure
against ectopic pregnancies, severe infections, or significant bleeding.
The issue has grown in relevance following the onset of
the pandemic, which saw a spike in the number of self-administered abortions.
“Researchers determined that an increase of approximately 27,838 online orders
of abortion pills between July and December 2022 corresponded to the findings
of an additional 26,055 medication abortions reported outside the formal health
care system,” according to a study published in the American Medical Association
journal JAMA.
Last summer, the U.S. Fifth Circuit Court of Appeals
determined that the FDA had overstepped its authority by removing these
safeguards. It recommended that the regulatory agency both restore them and
restrict the future shipment of this drug by mail (restrictions that would stop
short of making the drug illegal, though access to these pills is already
restricted in more than a dozen states). Now, the ball is in the Supreme
Court’s . . . court. But some have concluded from oral arguments that the
justices don’t seem to be nearly as eager to be in favor of the plaintiffs.
“Only two justices, the conservatives Samuel A. Alito Jr.
and Clarence Thomas, appeared to show some support for the anti-abortion
challengers,” the New York Times reported. Along with the Court’s
liberal justices, who appeared unconvinced that the plaintiffs in the case had
demonstrated that anyone experienced sufficient injury to claim standing and
flatly rejected the notion that existing conscience protections were
insufficient to address the qualms of physicians who could be compelled to
prescribe these pills, some of the conservative justices seemed similarly leery
of rendering a verdict with sweeping implications.
Justice Neil Gorsuch wondered if the case would serve as
“a prime example of turning what could be a small lawsuit” into a situation
that forces the Court to act as “a nationwide legislative assembly on an FDA
rule or any other federal government action.” Justice Amy Coney Barrett pushed
back against Hawley’s claim that two doctors had objected to being involved in
the termination of a pregnancy via the prescription of this drug, saying that
she saw little evidence that those physicians had participated in that
procedure at all. “Under federal law, no doctors can be forced against their
consciences to perform or assist in an abortion, correct?” Justice Brett
Kavanaugh probed. Along with Justice Ketanji Brown Jackson, Chief Justice John
Roberts wondered why the remedy the plaintiffs sought needed to be as broad as
restricting access to this drug for the whole American population. “Why can’t
the Court specify that this relief runs to precisely the parties before the
Court as opposed to looking to the agency in general and saying, ‘agency, you
can’t do this anywhere?’” he asked.
In their apparent friendliness toward the arguments
raised by the plaintiffs, Justices Alito and Thomas raised the specter of
Anthony Comstock, a Gilded Age anti-vice campaigner who helped establish a
nationwide network of vice squads devoted to policing the dissemination of
lewd, pornographic, and even provocative literature in the 19th century.
The so-called “Comstock laws” restricted access to those
and other materials, including their transmission through the U.S. mail —
restrictions H. L. Mencken famously and successfully challenged. A lower court
that found in favor of the plaintiffs in this current case found a remedy in
the still-active provisions of the 1873 Comstock Act, which prohibits the distribution via
post of any “article, instrument, substance, drug, medicine, or thing which is
advertised or described in a manner calculated to lead another to use it or
apply it for producing abortion.” Over the generations, “Comstockery” has
become a byword for prudery, but the law is the law. Alito argued that the
Comstock Act is not an “obscure” but, rather, “prominent” federal statute.
Thomas appeared to agree. Nevertheless, their seven colleagues didn’t seem to
share their enthusiasm.
The indications that the Court will decline to once again
introduce new restrictions on abortion practices in America in the middle of an
election must be a letdown for Democrats and their media allies. Ahead of oral
arguments, Middlebury College economist Caitlin Meyers told Yahoo! News that a decision favoring the
plaintiff “could be bigger than Dobbs” in terms of its real-world
and political impact. National Public Radio deemed this case the “daughter
of Dobbs,” a grandiose assault on the “FDA’s regulatory power to
approve drugs and continually evaluate their safety — a system that until now
has been widely viewed as the gold standard for both safety and innovation.”
Temple University Law School dean Rachel Rebouché agreed. “This might be the
most important event since Dobbs on so many levels,” she told the New York Times. “Thousands and thousands of pills
are being shipped everywhere across the United States from a handful of
providers. That alone speaks to the nature of what mailed medication abortion
can do.”
Some Democrats have already laid the rhetorical
groundwork to connect a Supreme Court decision that cuts against unfettered
access to abortion drugs to a February ruling by the Alabama Supreme Court that
found frozen embryos have the same rights as already-born children — a decision
that led local in vitro fertilization providers to limit access to their
services. Restricting mail-order abortion medication would yield “even more
economic damage than Dobbs,” Senator Sheldon Whitehouse said in a recent congressional
hearing in which he connected the case to a broader assault on reproductive
choice. “Even in vitro fertilization is under the gun, at the hands of
right-wing extremists.”
Senator Whitehouse’s well-known penchant for reckless
hyperbole notwithstanding, some Republicans seem to think he has a politically
salient point. In a memo produced by Republican State Leadership Committee
president Dee Duncan, the GOP’s 2024 nominees are advised to avoid embracing
the Alabama court’s decision. “Voters are 58% more likely to support a
candidate that voted for commonsense protections for doctors and fertility
clinics who assist patients and families in having children,” the memo read in a reference to the IVF decision. On
that front, the GOP doesn’t seem to need much goading.
Many Republicans rushed to distance themselves from the political
fallout settling over Alabama following that court’s ruling, but not all. “IVF
is morally dubious and should not be subsidized by the American taxpayer,” four
House Freedom Caucus members wrote in opposition to an effort to expand access
to IVF treatments for veterans. In reporting on how Democrats are seeking to
leverage that letter to tarnish the Republican Party as a whole, Axios noted somewhat incongruously that
“the Democratic Congressional Campaign Committee tried to tie vulnerable GOP
incumbents to groups seeking to have the Supreme Court restrict access to the
abortion drug mifepristone.”
The connection between IVF and mifepristone may not be
readily apparent to most observers save the tenuous connection they both have
to reproductive outcomes, but Democrats are busily establishing that very
connection. And they have willing abettors in the press.
ADDENDUM: In a special election to fill an
Alabama House seat, Democrat Marilyn Lands handily defeated Republican Teddy
Powell by about 25 points in a district Donald Trump narrowly
won in 2020. Lands’s victory comes on the heels of her seven-point loss to
another Republican in 2022. The race is more evidence of the Democratic Party’s
recent overperformance in low-turnout elections, but it may also serve as proof
of the Democratic concept that the IVF ruling is a millstone around Republican
necks.
“Lands bet her campaign that voters in the suburban
district were angry about the state’s strict ban on most abortions and the
Alabama Supreme Court’s recent ruling that frozen embryos created through IVF
were people,” the Washington Post reported. “Republicans across
the country have been put on notice that there are consequences to attacks on
IVF,” the president of the Democratic Legislative Campaign Committee said in a
late-night statement. Expect Democrats to try to take that strategy national.
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