Supreme Court and the new abortion case

Chances are good the Supreme Court soon will agree -- indeed, may have done so by the time you read this -- to hear a case pitting efforts to clamp down on mail order abortion against government efforts to defend it. The focal point of this dispute is the widely used abortion drug mifepristone.

Mifepristone is used in more than half of all U.S. abortions. The drug causes abortion by breaking down the lining of a pregnant woman's uterus.

Seeking review of lower court restrictions on the drug are the Food and Drug Administration, the U.S. Department of Justice and Danco Laboratories, its manufacturer.

A group called the Alliance for Hippocratic Medicine, made up of prolife physicians and others, claims the Food and Drug Administration, acting under pressure from the administrations of former president Barack Obama and President Joe Biden, cut corners to make mifepristone more easily available. (The group's name is a reference to the oath, named for the Greek physician Hippocrates, by which physicians pledge themselves to practice medicine ethically.)

Oral argument in the case will be scheduled early in 2024, with a decision expected before the Supreme Court's term ends in June.

The case (Food and Drug Administration v. Alliance for Hippocratic Medicine) comes to the Supreme Court on appeal from a ruling last August by a three-judge panel of the Fifth U.S. Circuit Court of Appeals upholding a district court decision that placed substantial restrictions on the drug. The August ruling cleared the way for the Supreme Court to take up the case which it had refused to hear until the Fifth Circuit Court acted on it.

The FDA first gave its approval to mifepristone in 2000, then in 2016 and 2021 relaxed restrictions on it, allowing its use up to the 10th week of pregnancy -- the point at which an unborn infant has a beating heart. The FDA also permitted non-physician health care providers to prescribe the drug, and allowed it to be prescribed and sent through the mail without an in-person examination.

The ruling by the Fifth Circuit Court of Appeals reduces the time frame from 10 weeks to seven -- the point at which the fetus begins to feel pain. It bars non-physician prescription of mifepristone and sending it through the mail, and requires three in-person visits by the woman to the prescribing doctor.

A fact sheet on chemical abortion prepared by the Secretariat of Pro-Life Activities of the U.S. Catholic Bishops' Conference notes that the Food and Drug Administration, when approving chemical abortion in 2000, also issued "strict protocols" for the protection of the mother. The original safeguards were later incorporated in a Risk Evaluation and Mitigation Strategy adopted in 2011.

But, the fact sheet says, the safeguards were "severely weakened" in 2016 when the FDA began permitting non-physicians to dispense the drug and reduced the number of office visits required from three to one. Then in 2021, it says, the FDA began allowing mail-order abortion and eliminating "any pretense of" a doctor-patient relationship.. "With this action," the fact sheet adds, there is no knowing "the full extent of harm to the women whom the FDA is supposed to protect." Among the potential problems it lists are serious injury and even death resulting from complications like previously undetected ectopic pregnancy, severe blood loss, and other problems.

And all to what end? "In addition to being a profitable new 'product,'" the USCCB fact sheet says, "telehealth, mail order, at-home, do-it-yourself chemical abortions are a boon to the abortion industry."

- Russell Shaw is the author of more than twenty books. He is a consultor of the Pontifical Council for Social Communications and served as communications director for the U.S. Bishops.