I’ve read quite a few MSM articles on the SCOTUS ruling about the abortion pill, and the reporting lacked so many of the details I was looking for that I ended up turning to law blogs and the plaintiffs’ brief to get any clarity at all. And even then, many questions remain in my mind.

Here’s a fairly good law blog article on the subject. An excerpt:

The Supreme Court on Friday night granted a request from the Biden administration and a drug manufacturer to put on hold a ruling by a federal judge in Texas that suspended the Food and Drug Administration’s approval of mifepristone, part of a two-drug protocol used to end pregnancies in their early stages. The battle over medication abortions, which account for over half of all abortions performed in the United States each year, now returns to the U.S. Court of Appeals for the 5th Circuit, which is scheduled to hear oral argument in the case next month. The order means that the drug will remain widely available while litigation continues.

Two justices indicated that they would have denied the requests. Justice Clarence Thomas did not elaborate on his reasoning, but Justice Samuel Alito penned a four-page dissent in which he questioned the need for the court to act now.

The decision only means that the pill won’t be blocked until the issue is decided later, on the merits. That should happen pretty soon, and then it might reach the Supreme Court on appeal. I think that this interim decision makes sense, because it’s a pill that’s been in use for nearly twenty five years, with FDA approval, and a short wait just preserves the status quo.

Plaintiffs contend, however, that FDA approval was obtained by skirting the usual rules for the process, and that subsequently removing even more of the original safeguards has made the pill dangerous. Do they make a good case for that? I suggest you read at least the first twenty pages or so of the brief, it’s quite interesting.

Abortion activists maintain that the suit is an effort by anti-abortion forces to prohibit a vast number of abortions, and that their goal is to ultimately end all abortions. I wouldn’t doubt it. Their goal is certainly to ban this drug, but – as with many lawsuits – it’s not the only thing they want. The court could fail to grant that request and yet grant another, which is to allow the drug to remain legal but to roll back the situation by replacing some of the safeguards that were only jettisoned in 2016 and then during the COVID years, such as (for example), having to actually see a doctor in person before being prescribed the drug, and being screened for gestational age of the pregnancy by sonogram (the reason for the latter is that the pill is increasingly dangerous to the mother with increasing age of the fetus, and women don’t always know how advanced their pregnancies are). These pills apparently presently account for half of all abortions in the US, and are only available up to 10 weeks (they used to only be available up to 7 weeks).

Here are the plaintiffs’ goals regarding that more limited element of the lawsuit:

The 2019 Citizen Petition asked the FDA to take the following actions to restore and strengthen elements of the chemical abortion drug regimen and prescriber requirements approved in 2000 to protect the health, safety, and welfare of women and girls:

• Reduce the maximum gestational age from 70 days to 49 days;
• Limit the ability to prescribe and dispense chemical abortion drugs to qualified, licensed physicians—not other “healthcare providers”;
• Mandate certified abortionists to be physically present when dispensing chemical abortion drugs;
• Require that the prescriber perform an ultrasound to assess gestational age, identify ectopic pregnancies, ensure compliance with FDA restrictions, and adequately inform the woman of gestational age specific risks, which rise with increasing gestational age;
• Restore the requirement for in-person administration of misoprostol;
• Restore the requirement for an in-person follow-up visit to confirm abortion and rule out life-threatening infection through clinical examination or ultrasonographic scan;
• Restore the 2000 label language that stated that chemical abortion drugs are contraindicated if a woman lacks adequate access to
emergency medical care; and
• Restore the prescriber reporting requirements for all serious adverse events, including any deaths, hospitalizations, blood transfusions, emergency room visits, failures requiring surgical completion, ongoing pregnancy, or other major complications following the chemical abortion regimen.

The 2019 Petitioners also asked the FDA to require a formal study of outcomes for at-risk populations, including the pediatric female population, patients with repeat chemical abortions, patients who have limited access to emergency room services, and patients who self-administer misoprostol.

There’s much much more at the link, too much to adequately cover here.

The 2019 petition described above was almost entirely denied by the FDA, which claimed this sort of thing:

In support of its claim that in-person dispensing is unnecessary, the FDA relied on the “small” number of adverse events voluntarily reported in the FDA Adverse Event Reporting System (FAERS) database to justify the elimination of this safeguard, even though the FDA had years ago removed the requirement for abortionists to report nonfatal adverse events.

If there’s no reporting requirement, how can the data be relied on? I don’t see that it can.

I want to repeat that I’m in favor of allowing the drug to be dispensed for now. I also think it will be difficult for any court to judge this case and ban the drug entirely, because doing that would rest on scientific data that simply isn’t there, and requires second-guessing the decisions of the FDA. You may not trust them, I may not trust them, but if courts grant challenge after challenge to the FDA’s medical judgment, it opens up quite the can of worms. The evidence for overruling the FDA;s medical judgment had better be plenty strong. Or, alternatively, the court could decide that the FDA didn’t follow proper procedures; that would be an easier way out, in the legal sense. If the case ultimately goes to SCOTUS, I don’t think they’ll vote for a full ban, although they may decide to put some of the safeguards back in place.

NOTE: I was for repealing Roe and leaving these decisions to the states; I think Roe was judicial overreach. But I’m not for national prohibitions on abortion or national requirements that all states allow abortion (such as Roe) unless either goal is accomplished by constitutional amendment rather than through the courts. I’m consistent in that approach.