Having failed in the US Supreme Court, anti-abortion activists are trying other ways to prevent access to approved drugs

I last wrote here in April 2023 about the US legal wrangling over the abortion drug mifepristone. To recap, anti-abortion groups are claiming that the US Food and Drug Administration (FDA) overstepped its authority in regulating the drug. It is available through mail-order prescription, even in states that are trying to restrict all methods of abortion, but an 1873 law (still on the books) bans using the mail for such material. The US Postal Service argues that this law was meant to prevent illegal activity (as it was at the time), but that mifepristone is now an approved drug, so the statute does not apply.

This case was argued before the US Supreme Court earlier this year, and legal observers noted that the reaction of the justices (and the questions asked) made it look very unlikely for the plaintiffs to prevail. In fact, the entire case was just thrown out, based on the question of legal standing: to proceed, the anti-abortion physicians bringing the suit needed to show that they (or any physicians at all) stood in imminent danger of harm due to the FDA’s regulatory decisions. The court found they did not, especially considering the wide scope of conscience-based exemptions from having to perform abortion procedures in general. Almost no time was spent on the legality of the FDA’s regulations themselves.

More cases to come

This issue is not going to go away, though. Although these plaintiffs didn’t have legal standing, Attorneys General in the most anti-abortion states will undoubtedly round up people who are more likely to pass that test, and file another suit that will could make its way up to the Supreme Court for another round. And there are other challenges underway. Just recently, the state of Louisiana moved to classify mifepristone (and misoprostol, the usual accompaniment) as a ‘dangerous controlled substances’ (the same classification used for addictive drugs like opioids).

On the face of it, the penalties attached to that legislation would only apply to someone who was in possession of these drugs without a prescription, which doesn’t seem like it would slow things down much. But anti-abortion groups hope that this designation (and the accompanying paperwork and security requirements) will make pharmacies more reluctant to stock and dispense the drugs, making them harder to obtain in Louisiana one way or another. Several other conservative states have considered such legislation, and they’ll watch to see how the Louisiana law fares. There will surely be counter-lawsuits saying that the state legislature has overstepped its authority, and that could set up the sort of limits-of-the-FDA case that anti-abortion groups were hoping that the recent unsuccessful case would turn into.

The Supreme Court showed reluctance to take on any reworking of the FDA’s powers

This all starts fitting into a framework where some US conservatives seem to want the law to work in two different ways for different people. For one group (the conservatives themselves), the law would protect them from the actions and demands of others, but would not restrict their own choices. But for everyone else, the law would be there to bind but not to protect. In other words, a ‘Heads we win; Tails, you lose’ coin-flip game. The Louisiana legislature ­– along with many of its citizens – do not want any federal agency (such as the FDA) to be able to tell them that they have to allow things that they themselves do not approve of. But they would be fine with a federal government that could somehow rule for the entire country that abortion was now illegal by every means, for every citizen, with no legal recourse.

That is obviously no way to run a coherent legal system. Abortion, though, is one of those issues that brings out the worst in its most passionate advocates – any weapon to hand, so long as the end result is the one you wanted. But the Supreme Court’s instant focus on legal standing in the most recent case showed a real reluctance to take on any fundamental reworking of the FDA’s regulatory powers – even with a group of justices more likely than any in decades to take on such a project. We’ll see if they have any more enthusiasm when the issue comes around again. I would like to say ‘if’, but there seem to be a lot of people determined to make that happen, by any means necessary.