Chemical abortion, the FDA, and the Supreme Court

How do you measure the impact of a single Justice on the Court? Obviously, only hindsight will truly tell, and the outcome will depend on a variety of factors that may include the Justice’s personality, intelligence, and political acumen. It’s often said that each new Justice makes the Supreme Court a new and different Court. The Court is a collegial environment—and we have the friendship of the late Justices Antonin Scalia and Ruth Bader Ginsburg as a beautiful example—but it’s also at times a “Team of Rivals”.  Nowhere is that fact more evident than in the area of abortion jurisprudence.

Pending before the Court is a case that may highlight that fact in stark detail; American College of Obstetricians & Gynecologists v. the Food & Drug Administration, a request for emergency relief by the Justice Department from a Maryland federal judge’s preliminary injunction partially invalidating the U.S. Food & Drug Administration (FDA) restrictions for RU-486, or “chemical abortion”. The case represents a rare instance when a sole federal judge has enjoined an abortion regulation in all 50 states. The case has immense implications not only for abortion law, but also for the way that the federal government makes administrative law through the Administrative Procedures Act—which is well over 80% of all the written law in America today—and the role that courts play in reviewing those regulations pursuant to the Chevron doctrine.

Yesterday, September 28th, marked the twentieth anniversary of the FDA’s approval for marketing of RU-486. In its 20-year history, the known risks and complications of RU-486 have not changed. The drug has not become more safe or effective for women. The only thing that constantly changes is the amount of risk of death and physical injury the abortion industry thinks women should be willing to accept to obtain a chemical abortion.

Taking advantage of the COVID pandemic and “social distancing” mandates, abortion providers filed suit against the REMS, the regulations governing drug use, in federal court in Maryland, arguing that the in-person requirement imposed a “substantial burden” on access to abortion and was medically unnecessary. The district court issued, for the duration of the COVID-19 Public Health Emergency declared by the Secretary of Health and Human Services, a nationwide injunction preventing the FDA from enforcing provisions of the REMS, specifically the requirements that mifepristone be dispensed only in a clinic, medical office, or hospital; patients sign the Patient Agreement Form in the physical presence of the healthcare provider; and the physician attest to following these requirements. The Department of Justice asked the Fourth Circuit Court of Appeals for an emergency ruling setting aside the injunction, but the Fourth Circuit denied the motion. The DOJ has now asked the U.S. Supreme Court to issue an emergency ruling, and we’re awaiting the decision. 

We don’t know whether the Supreme Court has voted on the emergency petition. But even if Justice Ginsburg had already voted before she passed away, it would make no difference. The Supreme Court ruled last year in Yovino v Rizzo that the Ninth Circuit could not count the vote of the late Judge Stephen Reinhardt after he died. The Court said, “Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity.” 

Thus, the Court’s decision in the FDA case will be made by a vote of eight Justices, and the strongly pro-choice side of the Court—the so-called “Breyer bloc” of four concurring Justices in the recent June Medical Services decision—will lose a key member. Whether that results in a Chief Justice Roberts who feels freer to stand out on abortion cases, or a Chief Justice who is even more cautious, remains to be seen. But this decision will be one of the most impactful decisions that the Supreme Court will make in recent memory. For that reason, AUL will be privileged to file a friend of the Court brief in the case on behalf of Members of Congress. And the decision on the merits of the case, which should come down sometime before next summer, will be made by Justice Ginsburg’s replacement. In all likelihood, she will be an ideological opposite to Justice Ginsburg, Judge Amy Coney Barrett. Some nominations make for subtle shifts in personality or point of view on the Court. This one may prove to generate a sea change.