The bad law and worse politics of the abortion pill case
Conn Carroll
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Last Friday, the U.S. District Court for the Northern District of Texas issued an order overturning the Food and Drug Administration’s 23-year-old decision to approve mifepristone, a hormone blocker often used in conjunction with a second drug, misoprostol, to induce abortions.
It is estimated that over half of all abortions in the United States are accomplished with drugs like mifepristone.
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A second order issued that same day by the U.S. District Court for the Eastern District of Washington banned the FDA from altering the status of mifepristone. The orders conflict, and these cases will almost certainly be going to the Supreme Court.
I think the plaintiffs in the Texas case, including the Alliance for Hippocratic Medicine, will ultimately lose their case and for the same reason Republicans have been consistently losing elections ever since Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade: It is always easier to motivate people to vote when they feel that something is being taken from them.
After Roe, many voters felt their “right” to abortion had been taken from them, even if they lived in states where new abortion restrictions were unlikely. But in states where new abortion restrictions were a possibility, such as Michigan and Pennsylvania, Republicans did particularly badly in 2022.
And the pro-life movement has followed those losses with big losses in a New York special election and a Wisconsin Supreme Court election. Post-Roe, when abortion is on the ballot, the pro-life side is losing and losing greatly.
None of this means Dobbs was a bad decision. Dobbs absolutely was the correct decision. The Supreme Court rightly turned the issue of abortion over to the legislature. Finally, the pro-life movement could take its case for abortion restrictions to voters.
But that is not what is happening in the Alliance for Hippocratic Medicine case. The Alliance for Hippocratic Medicine is bypassing voters entirely and is asking a court to restrict abortion unilaterally. The case has two huge problems.
First, in all cases, a plaintiff must show that it has specifically been harmed by the defendant in a way the court can address. Here, the plaintiffs have not shown that.
The main argument is that by approving mifepristone, the FDA has made it more likely that doctors who oppose abortion will have to treat women who are suffering an injury caused by mifepristone. This is far broader of a theory than what current standing doctrine allows. As Case Western Reserve University School of Law professor Jonathan Adler notes, this would mean any auto shop could sue any federal agency challenging any safety regulation on the theory that without the regulation, the shop would be forced to repair more cars.
Second, not all, but most causes of action are limited in the time they can be brought by a statute of limitations. Here the relevant statute is 28 U.S.C. Section 2401(a), which sets a six-year limit on all challenges to federal agency action, which in this case is the final approval of mifepristone — which occurred 23 years ago in 2000.
The plaintiffs have two responses to the obvious problem that the suit came 23 years after the final agency action and not six. First, they claim that they filed a citizen petition against the FDA’s final action in 2002 and the FDA didn’t reject that petition until March 2016. But even by that standard, the plaintiffs lose because they waited until November 2022 to file this suit.
The plaintiffs’ second argument on the statute of limitations is that the FDA has since altered how mifepristone can be dispensed. This is true, but these alterations are not what plaintiffs are challenging. They are challenging the initial approval that happened 23 years ago.
And that is the big political problem with this case. Elements of the pro-life movement are again trying to take something away — this time something very real and concrete, a common drug, which a majority believes should be legal and which has been perfectly legal for over two decades.
The plaintiffs allege that mifepristone is unsafe and the FDA never should have approved it. But mifepristone has been widely used in this country for 23 years. If it is so dangerous, where is the popular political support to ban it outright? Congress doesn’t need permission from the FDA to ban anything. If Congress wants to ban mifepristone, it can.
All Republicans want to see the number of abortions in the U.S. come as close to zero as possible. Overturning Roe was a hugely positive step in that direction. But Republicans can’t keep losing to Democrats at the ballot box and expect the number of abortions to go down. If Republicans lose enough elections, especially elections where Democrats make abortion the only issue in the election, then eventually, abortion will be legal nationwide, both medical and otherwise.
Instead of stretching statutes of limitations and the doctrine of standing beyond their breaking points in federal court, the pro-life movement should be out with voters changing hearts and minds.