U.S. Supreme Court

Expanded access to abortion drug remains intact after Supreme Court says challengers lack standing

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Boxes of the drug mifepristone sit on a shelf at the West Alabama Women's Center in Tuscaloosa, Alabama, on March 16, 2022. The drug was approved by the Food and Drug Administration in 2000. (Photo by Allen G. Breed/The Associated Press)

The U.S. Supreme Court on Thursday unanimously ruled that anti-abortion medical groups and doctors who challenged expanded access to the abortion drug mifepristone lacked standing to sue.

The Supreme Court left expanded access to the drug intact in an opinion by Justice Brett Kavanaugh.

At issue were decisions by the U.S. Food and Drug Administration that made it easier to obtain mifepristone.

Among other things, the FDA allowed mifepristone to be dispensed by mail; allowed some licensed nonphysician health care providers to prescribe it; and allowed the drug to be used for up to 10 weeks of pregnancy, rather than seven weeks.

To get into the courthouse door, Kavanaugh said, plaintiffs must have a personal stake in a dispute.

“As Justice Scalia memorably said, Article III requires a plaintiff to first answer a basic question: ‘What’s it to you?’”

In this case, the doctors and medical associations don’t prescribe or sell the drug, there are no physical injuries to themselves, and there is no injury to their property, Kavanaugh said.

Nor have the doctors shown that they will be forced to participate in abortions or abortion-related treatment. Federal conscious laws protect doctors from such participation since mifepristone was first approved in 2000.

“Under Article III of the Constitution,” Kavanaugh wrote, “a plaintiff’s desire to make a drug less available for others does not establish standing to sue.”

Kavanaugh acknowledged that the plaintiffs “have sincere legal, moral, ideological and policy objections to elective abortion and to FDA’s relaxed regulation of mifepristone.”

But the proper place to present those objections is before the FDA, Congress and the president, he said.

ABA President Mary Smith released a statement following the decision.

“The American Bar Association is pleased that the Supreme Court today unanimously rejected a challenge to the FDA decisions regulating the drug mifepristone because plaintiffs lack standing,” Smith said in the statement.

“The ABA remains committed to supporting reproductive choice,” she added. “Limiting this choice can have devastating consequences for those who are pregnant and can adversely affect their physical and mental health, their lives and the lives of their families. Today’s ruling maintains the availability of mifepristone as an option for individuals and families that need it.”

The case is Food and Drug Administration v. Alliance for Hippocratic Medicine.

Hat tip to SCOTUSblog.

See alsoe:

Supreme Court revisits abortion debate in case over access to pregnancy-ending drug

Supreme Court will consider whether FDA wrongly expanded access to abortion drug mifepristone

Chemerinsky: Expect another momentous year at the Supreme Court

Why the 5th Circuit is allowing abortion pill sales but pausing expanded access to the drug

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