Why the Abortion Pill Ruling Is About the Administrative State

The U.S. Supreme Court surprised no one Thursday morning when it ruled unanimously that the Alliance for Hippocratic Medicine et al. did not have legal standing to challenge the FDA’s approval of mifepristone, the abortion pill. The court had already made it quite clear during the March hearings for the case that, while the group of conservative doctors and activists may have had valid concerns about mifepristone and its harmful effects on women and unborn children, the harm to the plaintiffs specifically was not direct enough to merit the case. While plenty of women who take Mifeprex have suffered severe side effects, and required doctors to complete their botched abortions, the pro-life doctors bringing the case to the highest court had never themselves been forced into prescribing the abortifacient.

The political effects of cases like this one rarely center on the facts, however. The Dobbs v. Jackson Women’s Health Organization decision had much to say about fixing a previous bad ruling in Roe v. Wade and curtailing judicial overreach, but its political effect was to raise an anti-life deluge: A threat to abortion anywhere is a threat to abortion everywhere. So too with FDA v. Alliance for Hippocratic Medicine. After such a decision, the political scorecard seems to read, “abortion pills are not going anywhere, losers.” 

Editorial staff at the New York Times wheedled that few unanimous decisions have ever “felt as unsettling,” while the president and CEO of the Center for Reproductive Rights complained that the ruling was “not a ‘win’ for abortion—it just maintains the status quo, which is a dire public health crisis in which 14 states have criminalized abortion.” But while the anti-life cause continues to sound the alarm at anything short of abortion on demand with no exceptions, the Food and Drug Administration remains coolly above the Court’s reach. Associate Justice Brett Kavanaugh wrote in the majority opinion that “federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions,” and concerned citizens should instead turn to lawmakers and regulators with such complaints. The Court said it would consider the merits of a similar case only if plaintiffs can demonstrate “sufficient likelihood of future injury.” For now, the FDA’s drug approval decisions remain untouchable. 

Because this win for abortion advocates is also a win for the administrative state.

There was a fear that FDA v. Alliance might “undermine the FDA’s drug approval process beyond the abortion context by inviting judges to second-guess the agency’s scientific judgments.” A topsy-turvy world in which checks and balances exist for the administrative state is, to the current administration, unspeakably dangerous. If mifepristone can be questioned, other drugs which FDA has approved despite harmful side effects—of which there are a concerning number—might also be brought to trial. 

All of which naturally makes one wonder who, if not the courts, might provide any check on the agency that has approved these drugs that many view as harmful. In theory, administrative oversight is the role of Congress, but in practice Congress seems just as impotent.

In 2013, Linchpins of Liberty v. United States came before the U.S. Court of Appeals for the District of Columbia with tremendous national attention. The case centered around a woman named Lois Lerner, the director of the Exempt Organizations Unit of the IRS, which was found targeting hundreds of conservative non-profit applicants. Any non-profit with the words “tea party,” or “patriot,” in its application—or, like the case’s title organization, an apparent penchant for liberty—was singled out for additional scrutiny, to the tune of 90 page detailed questionnaires in some cases. The scandal was big enough to be brought before Congress. Once there, however, Lerner insisted she had broken no law and refused to answer any further questions. Six Democrats joined Republicans in finding Lerner in contempt of Congress, but the Department of Justice refused to pursue the charges, and Lerner retired of her own accord later that year. This is the pitiful extent of congressional oversight. 

For pro-life Americans, the biggest problem with mifepristone is still the very thing it is designed to do: terminate unborn children. But its side effects include deadly uterine hemorrhage, made worse by the drug being approved for at-home usage with no medical supervision, meaning problems of a serious nature are often not discovered until too late. If there is any hope in bringing the Court to correct these serious maladies, it might simply be found in bringing those women and their doctors to testify en masse. 

The attempt to end-around FDA approval of mifepristone was an incisive one. Such a case could do more than curb an at-home abortion drug– it would call into question the authority of irreproachable experts. The high priests there found the common folk unclean, and therefore unfit to weigh in on this in a more democratic fashion.

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