The frustration of the two justices who wrote scathing dissents is easy to understand.
The frustration of the two justices who wrote scathing dissents is easy to understand.
O ver piqued dissents by Justices Clarence Thomas and Samuel Alito, the Supreme Court issued an injunction on Thursday that enables so-called telehealth abortions. Specifically, it stayed the Fifth Circuit’s temporary ban on the distribution by mail of mifepristone, the medication that accounts for over half of the abortions performed in the United States. (See Dan McLaughlin’s excellent post last night.)
As Michael New detailed Monday, Justice Alito had issued an administrative stay last week pausing the Fifth Circuit’s ban. Alito is the circuit justice for emergency matters arising in the Fifth Circuit, where the case — Louisiana v. Food and Drug Administration — arose; an administrative stay is just a temporary measure, usually lasting a few days, holding matters in abeyance while a court gets up to speed. Justice Alito later extended the stay to May 14 (yesterday) and, as expected, he referred the matter to the full Court.
Thursday afternoon, the Court issued a cryptic one-paragraph order staying the Fifth Circuit’s ban until the appeals have run their course — meaning, while the Fifth Circuit considers the lawsuit on the merits and through any subsequent review by the Supreme Court (if there is an appeal of the circuit’s eventual decision that the Court agrees to hear; I’d bet on both those things’ happening).
To be clear, there is no ruling on the merits. We don’t know if other justices dissented. But the frustration of the two justices who wrote dissents is easy to understand — at least once one is familiar with the sleight-of-hand by which Democratic administrations (Clinton, Obama, and Biden) initially approved mifepristone in 2000, then steadily eradicated the safety regulations that were the rationalization for that bizarre initial approval.
Add to that the Trump administration’s legerdemain. On the law, the Fifth Circuit is clearly right. Indeed, as Justice Thomas points out (just as Judge James Ho had in the Circuit), the Comstock Act, which remains on the books undisturbed, has made it illegal to ship abortifacients in interstate commerce since 1873. Yet, because President Trump fears that an abortion controversy would hurt Republicans in the coming midterm elections (increasing the near certainty that he would be impeached if Democrats take control of the House), the FDA under Trump’s just-ousted commissioner, Dr. Marty Makary, urged that shipments of the abortion pill by mail should continue while the FDA “studies” the existing mifepristone regulations. In particular, that includes the untenable Biden-era greenlighting of mifepristone-by-mail, unabashedly adopted, despite the Comstock Act, as an effective nullification of the Court’s 2022 Dobbs decision, which overruled Roe v. Wade (1973) and returned abortion regulation to the states.
The result is that mifepristone is now shipped by mail even into states such as Louisiana, in which abortion is banned except for narrow exceptions.
If you’re keeping score, President Trump has declined to support pro-life measures in his second term on the rationale that he already “solved” the abortion issue by appointing conservative, originalist justices who compose the Dobbs majority. Yet, he now stealthily abets the Biden circumvention of Dobbs to defeat pro-life legislation in the states. As I’ve contended for years, Trump, who was a pro-abortion New York Democrat for much of his adult life, is not philosophically pro-life. (I doubt he’s philosophically anything except what seems good for Donald Trump from moment to moment . . . and, perhaps, tariffs.) Rather, Trump took a pro-life stance out of political expediency while seeking the Republican presidential nomination in 2015–16, and then running against abortion advocate Hillary Clinton. A pivotal issue in that race was which party would get to fill the Supreme Court seat vacated when Justice Antonin Scalia, an originalist icon and sharp critic of Roe, died in early 2016. The anti-abortion pose and campaign promise to appoint justices in the Scalia mold helped Trump win the White House.
But now, we have second-term Trump.
In April, the Trump Justice Department convinced Judge David C. Joseph, a Trump appointee to the district court in Western Louisiana, to continue allowing mifepristone shipments, including into states that had substantially outlawed abortion. The Fifth Circuit rebuffed the DOJ, but now the Supreme Court has bought on — in a one-paragraph, eleven-line order, with no explanation for that conclusion.
Over the years, Rich Lowry and I have periodically discussed abortion pill litigation on our podcast. To my mind, it is a paradigmatic demonstration of how the Constitution’s plan for lawmaking by representatives accountable to the people and their states has been undermined by the administrative state and its shift of legislative authority to the executive.
Progressives are fond of lionizing The Science . . . except when it cuts against a policy objective, in which case all bets are off. In this instance, the policy objective is abortion maximalism: Beneath moderate rhetoric about making terminations of pregnancy “safe, legal, and rare,” Democrats seek a regime permitting abortion anywhere, anyplace, anytime, regardless of both the consequences for women’s health and the viability of the unborn child.
President Clinton waited until the closing months of his second term to have the FDA fast-track approval of mifepristone (also known as “Mifeprex” and “RU-486”). Mifepristone denies the unborn child the nutrients needed to survive; it is used in combination with another drug, misoprostol, which induces contractions to expel the corpse from the womb.
To get mifepristone approved by administrative fiat (since there was no chance of approval by legislation in the GOP-controlled Congress), the FDA relied on a law intended to accelerate approval of medications to treat HIV. That is, the agency absurdly rationalized that pregnancy is “a serious or life-threatening illness.” This supposedly warranted the expedited approval of drugs to “treat” it.
But there was a caveat. Fast-tracking could only be rationalized if the distribution was restricted and carefully monitored while mifepristone continued to be studied. After all, not even the Clinton administration disputed the “treatment’s” potential to cause serious and adverse consequences. In the ensuing years, largely based on 2007 legislation, these post-approval safety regulations have become known as “risk evaluation and mitigation strategies” (REMS).
Hence, under the 2000 REMS, the FDA mandated that mifepristone could be administered only for the first seven weeks of gestation. The treatment would require at least three in-person visits to a doctor’s office: (1) a patient examination and administration of mifepristone on Day 1; (2) a patient examination and administration of misoprostol on Day 3; and (3) a patient examination on Day 14 to ensure that no remains were present that might cause infection and other complications. Finally, abortion providers were required to report all serious adverse consequences.
The FDA action was challenged almost immediately as being without legal and scientific bases. The litigation was tied up for many years administratively. In the courts, the FDA’s approval and subsequent foot-dragging were the subject of legal actions, but these foundered, mainly on the knotty legal issue of whether interest groups bringing such actions had standing to sue.
For over a decade, the Bush and Obama administrations, along with Congress, left it to the FDA and the courts to sort things out. Finally in 2016, toward the conclusion of President Obama’s second term, the FDA rejected a petition objecting to the Clinton FDA’s accelerated approval under the guise of HIV legislation. The petition had been pending for 14 years. Simultaneously, the agency suddenly relaxed the REMS that had ostensibly justified mifepristone’s expedited approval.
Among other changes, the gestational age for these medical abortions was increased to ten weeks (from the previous seven); the agency allowed medical practitioners not licensed as doctors to prescribe and administer chemical abortions; and the dosing regimen was altered so that now only one medically supervised visit, rather than three, was required — which meant, among other things, that the mandatory Day 14 follow-up examination, which might turn up complications that needed to be medically addressed, was eliminated.
And then there’s the most insidious modification of all: The Obama FDA altered the reporting requirement. Henceforth, prescribers of mifepristone would only need to track fatal adverse events.
Mind you, Democrats insist that abortion is not a matter of terminating the life of an unborn, defenseless human being; they say it is strictly a women’s health issue. Well, the patent purpose of the mandate that all adverse consequences be tracked was to promote women’s health. How could that conceivably be promoted by, in effect, erasing data about serious health problems that, even if not causing death, had resulted in emergency room visits, blood transfusions, other hospitalization, and additional medication treatment?
As night follows day, Democrats have exploited the Obama-era concealment of non-fatal but severe fallout from mifepristone to argue that the lack of bad-outcome evidence proves the drug is safe and should be made available more widely, with fewer (or no) restrictions.
Which brings us to President Biden.
In spring 2021, the Biden administration took advantage of the Covid-19 pandemic to permit mifepristone to be dispensed by mail. During this time of crisis, objections were muted. After all, Roe was still the law, so the authority of states to restrict abortions was limited. Moreover, the executive branch was merely exercising prosecutorial discretion: It was not purporting to annul the Comstock Act, just declining to enforce it for what — like many pandemic restrictions — was framed as the greater good of reducing risky travel, especially to health-care facilities.
Following the 2022 Dobbs ruling, though, abortion politics became fraught. For decades, Republicans had mouthed the pro-life line that Roe had been a federal usurpation of a health and safety matter that was the province of state law. Nevertheless, when the Supreme Court properly returned the issue to the states, Republicans proved utterly unprepared to deal with the revival of abortion politics.
Democrats, by contrast, were primed and aggressive. They had demagogued the issue for decades. Much of the public was thus deceived into believing that a reversal of Roe would prohibit abortion, rather than the truth: Reversal would simply return regulatory authority to the states, which could then approve whatever abortion regime voters wanted. Democrats were confident that abortion politics would help them in the 2022 midterms; sadly, they were right: Republicans narrowly won the House, but the hoped-for “red wave” reaction to Biden’s failed presidency did not materialize, and Democrats held their tight control of the Senate. Democrats were similarly optimistic that abortion politics might help them drag Biden (and eventually, Vice President Kamala Harris) to victory in the 2024 presidential contest.
It was in that zeitgeist that Biden’s new mifepristone REMS were implemented in January 2023. The prioritization of politics over women’s health could not have been more palpable. The FDA entirely did away with the mandate that the drug be dispensed by a medical professional. Instead, it allowed pharmacies to dispense mifepristone, including by interstate mail.
Now, moreover, Biden’s countermanding of the Comstock Act was no longer rationalized by prosecutorial discretion. Rather, the Biden DOJ issued a tortured opinion that Congress in 1873 had meant only to ban illegal shipments of abortifacients; somehow then, because a federal agency had since approved mifepristone, its shipment across state lines, for the explicit purpose of inducing abortions in states where such abortions are illegal, was deemed legal.
As Justice Alito observed in his dissent on Thursday, the 2023 REMS occurred on the heels of the Biden administration’s post-Dobbs announcement that it would “use every lever” available to “ensure that every American has access to . . . medication abortion that has been approved by the FDA for over 20 years” — an unmistakable reference to mifepristone.
That same agency, now under Trump administration control, concedes the undeniable: The 2023 REMS gave inadequate consideration to patient safety. They were heedlessly adopted for partisan reasons. And indeed, political calculation, not women’s health, is mifepristone’s historical true line, from its initial fast-tracking under the guise of branding pregnancy a “life-threatening illness,” through the sedulous stripping away of the performative safeguards installed to rationalize its approval, knowing they’d be vanished over time.
The Trump administration has just saved mifepristone again. As Justice Alito, author of the Dobbs decision, ruefully relates, there are now about a thousand abortions a month in Louisiana, more than there were before Dobbs and before the state largely outlawed the termination of unborn life.