Abortion Pill Fight at SCOTUS May Be 'Boundary Testing'

Legal experts say even conservative judges will see reason to pause
By Arden Dier,  Newser Staff
Posted Apr 11, 2023 9:55 AM CDT
What an Abortion Pill Fight at SCOTUS Might Look Like
Boxes of the drug mifepristone sit on a shelf at the West Alabama Women's Center in Tuscaloosa, Alabama, on March 16, 2022.   (AP Photo/Allen G. Breed, File)

An attorney for abortion pill distributor Danco Laboratories says the company will appeal to the Supreme Court if the US 5th Circuit Court of Appeals doesn't block a Texas judge's decision to reverse FDA approval of mifepristone. It's an "unprecedented judicial assault on a careful regulatory process that has served the public for decades," the company says, per CNBC. And a conservative-dominated Supreme Court might just agree with that view, the New York Times reports. It cites legal experts who say the case is far from perfect in the eyes of conservative justices who might feel compelled to limit abortion access and federal authority at the same time.

"There are reasons for justices unsympathetic to abortion rights and the administrative decision to pause here," University of California-Davis, law professor Mary Ziegler tells the Times. "Everything about this case makes it an imperfect vehicle, except for the fact that it's about abortion and the administrative state. This is boundary testing." As the Times notes, the Supreme Court affirmed the FDA's authority in a 2021 decision, reinstating a requirement that women pick up the abortion pill in person from a hospital or medical clinic. A year earlier, Justice Samuel Alito, joined by Justice Clarence Thomas, wrote of his incredulity that "a district court judge in Maryland took it upon himself to overrule the FDA on a question of drug safety," as US District Judge Matthew Kacsmaryk has just done.

"To have federal court power used in service of undercutting the ability of an expert agency to apply its congressional authority might be too much," says Rachel Rebouche, dean of Temple University Beasley School of Law. Justice Department attorneys, who are challenging Kacsmaryk's decision, also claim the judge ruled in favor of medical groups who didn't have standing to sue the FDA, in part because they suffered no injury, per CNN. While experts say Justice Brett Kavanaugh could be a pivotal vote if the court opts to review the case, Ziegler notes there are "procedural hurdles that give someone like him an out if he just doesn't want egg on his face after proclaiming that the court is getting out of the business of ruling on abortion rights." (More abortion pill stories.)

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