There was a sigh of relief last Friday when the U. S. Supreme Court decided – temporarily at least — against banning or limiting the FDA’s approval of the abortion pill mifepristone.
It’s little less than a year since the Supreme Court defied precedent, overturned the Roe v Wade decision, and left decisions about abortion “to the people’s elected representatives.” That action triggered almost immediate abortion bans in a dozen U. S. states. Since then it’s led to bans and limits in another dozen states. In consequence, women’s reproductive health in this nation has suffered a devastating blow.
For now the Supreme Court is leaving a pending case, Alliance for Hippocratic Medicine v U.S. Food and Drug Administration, in the hands of the Fifth U. S. Circuit Court of Appeals, which will hear expedited oral arguments May 17 in New Orleans.
In issuing the stay, the Supreme Court apparently split 7-2, with Justices Thomas and Alito opposed. While Thomas remained silent, Alito took the opportunity to issue a dyspeptic three-page dissent. He echoed some of the language used by Texas Judge Matthew Kacsmaryk earlier in April when he banned mifepristone throughout the entire United States. Alito also took a poke at President Biden and went out of his way to target and explicitly name three female justices as hypocrites by citing their stated dislike of using the shadow docket to act.
Temporary stay of the Texas judge’s banning of mifepristone, based on dubious claims of harm to the Alliance — a group of doctors who never prescribe its use — is welcome news for women’s health care. The medication, long approved as safe by the Food and Drug Administration, is now used along with the drug misoprostol in more than 50 percent of abortions performed in the United States.
Undermining the FDA’s judgment, by calling the decades-old approval of mifepristone “unsound reasoning,” as Judge Kacsmaryk did, is not only worrisome for reproductive health care, but it risks challenges to other FDA-approved drugs as well, everything from vaccines to birth control.
In his response to the court decision, President Biden said, “I continue to stand by FDA’s evidence-based approval of mifepristone and will defend the agency’s independent, expert authority to review, approve, and regulate a wide range of drugs.” He pointed out that the stakes could not be higher for women across nation. He most emphatically urged Americans to use their vote to elect lawmakers who will pass a law to reinstate Roe v Wade.
Implicit in Biden’s strong response is that safe access to abortion matters greatly in this country. More than 60 percent of Americans approve of abortion in most cases. It is an issue that has determined outcomes in recent electoral decisions. Even in Red states like Kansas and Kentucky, voters strongly disapproved ballot measures that would have made abortion more difficult if not impossible to obtain.
The fact that enacting strong anti-abortion laws does not improve electability has yet to dawn on many GOP hopefuls. Over the weekend, a half dozen of the crowd running for the Republican presidential nomination were in Iowa staking out their different shades of pro-life support. Former Vice President Mike Pence praised the Texas judge’s mifepristone ban and said mail order abortion pills should be banned. Sen. Tim Scott vowed to sign “the toughest pro-life law that they can get through Congress.”
Others including talk-show host Larry Elder, former Arkansas Gov. Asa Hutchinson, and businessman Vivek Ramaswamy were fellow travelers. Only Nikki Halley bowed out, saying she didn’t want to “get into that game.” Gov. DeSantis who didn’t attend had already made his position known by signing a six-week abortion ban in the dark of night.
Even the Supreme Court, which customarily tries to navigate above the political fray, is discovering that the ability of women to make their own decisions about health care is a critical issue, one that cannot be easily settled by handing it over to be decided, state by state.
After the Amarillo case is decided by the Fifth Circuit, the losing side will almost certainly appeal to the Supreme Court and SCOTUS will then have another chance to decide whether to weigh in. It probably would be a mistake to read last week’s 7-2 vote as a prediction of where the court is headed. Now there are reasons to think an ambitious and activist court has grown more restrained.