The Supreme Court issued a ruling Wednesday that was disappointing news to many in the pro-life movement. The high court ruled unanimously that pro-life doctors do not have legal grounds to challenge the Food and Drug Administration for removing safety restrictions on abortion drugs.
Sarah Parshall Perry, Heritage Foundation senior legal fellow, joined “The Daily Signal Podcast” afternoon edition to explain more. Listen to the podcast below or read the lightly edited transcript:
Virginia Allen: Sarah, several years ago, the Food and Drug Administration relaxed its regulatory requirements for the abortion pill known as mifepristone. And in response, a group of pro-life doctors and organizations sued the Food and Drug Administration. What grounds did those pro-life doctors and organizations sue the FDA on?
Sarah Parshall Perry: So, they brought, essentially, a challenge saying that the FDA had exceeded its statutory authority under something called the Administrative Procedure Act. And the APA guides every executive agency in the federal government when it makes determinations on law, when it acts within the capacity of sort of its own authority, but kind of gets over its skis issues, a determination that could be arbitrary, capricious, or not financially sound, or not supported by underlying law.
And what the doctors and the pro-life medical organization here had argued was that specifically when they removed safety protocols on this particular drug in 2016 and 2019, they exceeded their statutory authority.
The science demonstrated that the abortion pill is dangerous, results and complications 25% of the time. And then when they expanded the use of the abortion pill from seven weeks, which was the original approval, all the way up to 10 weeks, they said that is an exceeding amount of change that you didn’t follow the appropriate resolution for. It’s not supported by the science and it’s not supported by the law.
Allen: So, the case rose all the way to the Supreme Court. And what did we hear from the Supreme Court today?
Parshall Perry: Well, the Supreme Court didn’t even address the merits of the FDA’s decisions in 2016 and 2019. It didn’t make any comment on abortion itself. It simply made a procedural determination. And in fact, the entirety of the case opinion, both the concurrence from Justice [Clarence] Thomas and the majority opinion—and this was a 9-to-0 unanimous ruling—was no more than 38 pages long.
So, for people who I think were hoping for a real strong statement about the nature of the dangerous chemicals, the dangerous use of the abortion pill, the Supreme Court didn’t address that in the least. It only addressed the issue of standing.
And basically, that is a doctrine, a legal doctrine that’s been recognized for decades, that requires an individual plaintiff or an organization to demonstrate an actual injury that is traceable to the defendant that can be addressed by a court.
And here, both sets of petitioners lacked the first element, which is necessary for the rest of standing. They could not trace the FDA’s decisions to any particular injury that either the doctors or the pro-life organization had suffered.
Allen: So, then what does this mean for the case? Is it dead in the water or is there going to be future legal action, do you think?
Parshall Perry: I would anticipate we see future legal action. In fact, one of the statements that came out during oral arguments was essentially from the conservative justices. It can’t be that the FDA is above the law. There has to be a party withstanding to bring these particular claims to challenge its regulatory authority.
And what they did, I believe, is open up the door now to states, for example, who may want to sue when their citizens are injured by the abortion pill, or to individual women who suffer injuries on the abortion pill.
But in the end, the Supreme Court made sure that these particular doctors and the pro-life medical organization could not actually bring those cases in the first place. I think what we’re going to see going forward is essentially more litigation, fleshing out some of the standing theories, but still challenging the abortion pill regulation.
