Dem
51
GOP
49
The Supreme Court's Dobbs decision has roiled politics. Yesterday, the Court agreed to take another case that could roil things even more. The case was brought by a conservative group that wants to limit the use of mifepristone. Specifically, they want to prevent pregnant women from consulting physicians on video calls, having prescriptions e-mailed to them, and then getting them filled at brick-and-mortar pharmacies. Currently, this is a common scenario and the plaintiffs want it banned. Oral arguments will take place in the spring with a decision in June, just before the national conventions.
Mifepristone is extremely safe, with fewer complications than other widely used drugs, such as Tylenol and Viagra. But the plaintiffs claim the FDA overlooked the health risks when it approved the drug. In essence, the plaintiffs are asking nine lawyers to overrule a large number of doctors and medical statisticians at the FDA on the safety of the drug, something the justices know nothing about. However, yesterday, the Court admitted that it doesn't know anything about drug safety and won't allow the plaintiffs to challenge the initial approval in 2000. Instead, they will be allowed to challenge only the expansions of the availability made in 2016 and 2021. These include allowing mifepristone to be used up to 10 weeks of pregnancy (was 7 weeks), authorizing a generic version of mifepristone after the original patent ran out, and permitting video consultations (instead of in-person ones).
Many amicus briefs focus on the dangers of the Supreme Court taking medical decisions away from the experts at the FDA and making them themselves. If they rule for the plaintiffs, they will be inundated with lawsuits trying to ban many vaccines, contraceptives, and other drugs some people don't like. Does the Court want to neuter the FDA and make all the drug decisions itself? If so, it had better be prepared for a lot of incoming fire, including proposals to expand the Court and limit the scope of its jurisdiction, something the Constitution clearly allows Congress to do.
The political aspects of the case—especially due to the timing—could be enormous. First of all, there is judge shopping. The plaintiffs brought the case in Amarillo, TX. Why there? Because there is only one federal judge there, Matthew Kacsmaryk, who is a strong opponent of abortion. If they had brought it in Houston or Charleston or Dayton or Boston, a judge would have been chosen at random from all the judges there and they might have gotten a pro-choice judge. Clearly, the situation of litigants being able to pick a judge they know will support them is not a good thing and sooner or later is going to lead to pushback (e.g., consolidate districts so every one has at least three judges).
Second, if the Court decides to eliminate video consultations, women in most red states who want an abortion would have to physically travel to a blue state to meet with a doctor in person. Some wouldn't have the time, money, or transportation to do that, forcing them to have the baby. The outrage from women's groups will be almost as much as to the Dobbs decision and will guarantee that abortion will likely become the key issue in 2024. This could be a disaster for the Republicans.
The three Democratic appointees, all women, will almost certainly vote to keep the current rules. Neil Gorsuch, Clarence Thomas, Samuel Alito, and Amy Coney Barrett will very likely vote for the plaintiffs. This will put the decision in the hands of John Roberts and Brett Kavanaugh. They will weigh the Constitution, the law, precedent, and most certainly the political firestorm that will result from voting for the plaintiffs. They could go either way. Democrats should probably be rooting for a decision to ban video consultations, since that will greatly increase the chances of the Democrats winning the trifecta in 2024. Once they have it, they can have the FDA run the tests again and create new rules.
As an aside on all this, pregnant women are suing for the right to get an abortion much more than in the past. Previously, it was largely organizations, like Planned Parenthood, that were doing the suing, not individual pregnant women. The Kate Cox case in Texas recently is but one example. Women in Tennessee, Idaho, Kentucky, and elsewhere are now suing, claiming that their rights to privacy under the Fourth Amendment are being violated by state laws. As a practical matter, when the plaintiff is a pregnant woman who is carrying a fetus that will not survive, she has a much more powerful case than a pro-choice group that is arguing some abstract legal principle. That is doubly or triply true when the case is decided by a jury. (V)