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The Supreme Court as of June 30, 2022Fred Schilling, Collection of the Supreme Court of the United States


(LifeSiteNews) — Chemical abortions were more than half of all US abortions in 2020, possibly 60% or more now according to recent estimates. Federal court cases are pending in Texas and Washington relating to the validity of the FDA’s 2000 approval of the abortion drug mifepristone and the FDA’s 2016-2023 rule changes that loosened restrictions on chemical abortion procedures.

The Supreme Court will decide whether or not to roll back the FDA’s drastic post-2016 expansion of chemical abortions. This would be a temporary hold (“stay” order) until those issues can be litigated more fully in the lower courts. Or the Court could allow chemical abortions to continue as usual while the lower Courts do their job.

In any case, chemical abortions may be significantly more restricted this week, or not, depending on the Supreme Court.

Here’s what you should know:

1. This case originated in a federal District Court in Texas. The Texas judge put a temporary hold on the FDA’s approval of the abortion drug mifepristone, which is the first of two abortion pills used in sequence for a chemical abortion. Mifepristone is designed to kill the pre-born baby while the second pill, misoprostol, is then meant to expel the dead baby.

2. Although the case originated in Texas, it is a federal Court Order affecting the entire US except for 17 states and the District of Columbia that were part of a separate lawsuit in the state of Washington. It is unclear whether the Supreme Court ruling this week will cover those states as well.

3. The Texas decision was appealed and the Fifth Circuit Court of Appeal un-blocked the FDA’s 2000 approval of the abortion drug based on a legal technicality, a 6-year statute of limitations. However, the Court of Appeal upheld significant limits on the use of chemical abortion drugs, including:

A. Limiting chemical abortions to the first seven weeks of pregnancy.

B. Requiring three in-person office visits.

C. Non-doctors cannot prescribe and administer the drug.

D. Adverse events must be reported even if non-fatal (to the mother, that is).

E. Mifepristone will no longer be available via mail order.

F. Blocking FDA approval of generic mifepristone. This could be a big deal since the generic form of mifepristone apparently accounts for nearly two-thirds of domestic chemical abortions.

4. Abortion advocates are outraged by the fact that some of the judges were appointed by President Trump, including the Texas judge and some on the Court of Appeal and the Supreme Court. The Texas Court opinion noted that the word “fetus” was used improperly in prior abortion cases since a “fetus” is just one of several specific gestational stages of development (as opposed to the zygote, blastocyst, or embryo stages). The judge instead used the terms “unborn human” and “unborn child” since those include the multiple gestational stages relevant to the abortion drugs. He referred to “chemical abortions” as a more accurate term than the term “medication abortions” used in the abortion industry, and he described the fact that mifepristone “halts nutrition and ultimately starves the unborn human until death.”

5. Unfortunately, there is a possibility that the Supreme Court may throw out this case entirely if they do not believe the plaintiffs have legal “standing.” The concept of “standing” requires litigants to have something real at stake in a case. The FDA argues that those who object to the abortion drugs have no standing to complain about health risks since they do not themselves have abortions or suffer the consequences of unsafe abortions. However, this case was brought by a group of doctors who indeed suffer the consequences as they are called upon to “mop up” after some of the disastrous medical injuries caused by chemical abortions.

6. Plaintiffs in the case are conceding for now that the Supreme Court will not block the FDA’s original 2000 drug approval, despite obvious irregularities in that drug approval process. However, that is still a possibility for the future as the case develops in the lower Courts. There is some question whether a 6-year statute of limitations ran from the original 2000 approval date or whether it re-started in 2016 when the FDA renewed its approval of the abortion drug, especially as the FDA itself delayed and stonewalled objections over the years.

7. Abortion advocates insist that the Court should defer to the medical “experts” at the FDA. But the FDA in this case acted at the behest of the Clinton administration in 2000 and of the Biden administration most recently without fully considering the health risks. The Court has all the evidence it needs to find that the FDA failed to conduct legally required drug testing, including to evaluate drug safety under real-world conditions and to consider significant health risks unique to pregnant adolescents. Judges are not required to defer to the FDA when it clearly overstepped its legal authority and ignored drug safety testing standards to accommodate a politically driven abortion agenda.

8. Abortion advocates are also trying to shame the Supreme Court into rejecting this case since the Court in its recent Dobbs case (overturning Roe v. Wade) suggested that abortion laws should be left to voters in the various states. But we do not vote for the FDA. The FDA is run by unelected bureaucrats with little or no accountability to the voters, and the FDA should be expected to live up to its assigned task of screening drugs accurately for safety.

9. Finally, abortion advocates insist that abortion pills have a 20 plus years track record of safety for the pregnant woman. But there is ample evidence to the contrary. The Court of Appeal quoted the FDA’s written disclosures to women taking the drug, informing them they could have dangerous, sometimes even fatal, reactions requiring emergency care, and that the abortion drugs do not even work in 2-7% of cases. The Court criticized the FDA’s “ostrich’s head in the sand” approach to drug safety, eliminating reporting requirements for non-fatal adverse events and then declaring the abortion drug “safe” based on an absence of non-fatal adverse events.

10. The Court of Appeal ruling against mail order abortions was based on an old law known as the “Comstock Act” that prohibits mailing or any carrying in interstate commerce of any drug intended to produce abortions. This could be extremely important in the future to prevent the transit of abortion drugs from states that allow abortions to those that don’t.

11. Abortion advocates are busy planning what to do if they lose this case. Some pro-abortion politicians are stockpiling enough abortion drugs to kill millions of babies just in case. Some are proposing legislation or other steps to legalize more chemical abortions or to put conservative judges in their place. Abortion advocates are trying to assure the public that abortions can still be done using a drug known as misoprostol by itself (not to be confused with mifepristone) even though it would not be as effective. While the two drugs are usually used together in an abortion, misoprostol can be used by itself, although apparently that is less effective and has even worse side effects.

All eyes on the Supreme Court…

David Bjornstrom is a retired California attorney and member of the U.S. Supreme Court bar. Nothing in this article is to be considered legal advice or an examination of the law or passing upon the legal effect of any act, document or law.