Dem
51
GOP
49
Last August, the conservative U.S. Court of Appeals for the Fifth Circuit ruled that the FDA erred when it made mifepristone (which is used in over half of all abortions) more widely available in 2016, 2021, and 2023. After all, the Fifth Circuit Court knows far more about medicine than all the doctors, scientists, and statisticians who work at the FDA. Needless to say, the decision was appealed to the Supreme Court.
Tomorrow, the Court will hold oral hearings on the case. The ruling will impact people in all 50 states and D.C., including all the blue states. If the lower court ruling is sustained, medical abortions will be available only during the first 7 weeks of pregnancy instead of 10 weeks, nationwide. The number of people authorized to prescribe the drug and the number of places it can be sold would also be decreased. In short, sustaining the lower court will make abortions more difficult to obtain, which is what the plaintiffs want.
The Biden administration is going to argue that the FDA, not the courts, should be making medical decisions and the courts have no business second-guessing the FDA about whether drugs are safe and effective and how they should be prescribed, by whom, and under what circumstances.
Chief Justice John Roberts probably does not want this hot potato, but it will be in his lap tomorrow. The decision will come in June, just as the election is heating up. If the Court upholds the Fifth Circuit, many Democrats will openly run against the Supreme Court, saying they will vote to expand it to 13, 15, or maybe even 21 justices. The Court will become hugely politicized, something Roberts hates.
The case is being brought by four physicians who claim that someday they might have to deal with the results of a medical abortion gone awry. One way for the Supreme Court to weasel out of a tough call is to rule that the four physicians were not harmed by the FDA decisions just because someday they might hypothetically have to deal with a patient who got mifepristone under the new rules. By denying that they have standing to sue, the Court could toss the Fifth Circuit's decision without ruling on the merits of the case. (V)