The Case for Staying the FDA Rule on the Abortion Pill

Consider the following situation. The Food and Drug Administration approves, for the first time, a controversial use of an existing medication with no supervision by a doctor. Take as an example the use of hydroxychloroquine to treat Covid. There are publicly reported deaths of its users, yet the FDA has also pared back the data that doctors need to report about adverse effects — data that the doctors may not even observe because they’re not seeing the people taking the drug. States try to ban the drug, but corporations are still mailing it to their residents for profit, so the states go to court to challenge the scientific basis of the FDA’s approval. When called out, the FDA admits that it didn’t study the issue, but never fear, it’s studying it now.

The states ask for a court order stopping the new regulation while the question is being studied. Sure, they say, the FDA may be entitled to some presumption that its scientific studies are valid when somebody challenges them — but here, they’ve admitted in court that they didn’t do any studies, and studies are the FDA’s whole thing. This isn’t like some policymaking agency that is permitted to enforce presidential policies based on its own moral and practical intuition and the experience of its agents in the field and can wait for the data to back it up. The FDA’s powers derive from empirical, scientific studies. So, if the agency hasn’t done the studies, it should have to wait to act until it has. In the meantime, the usual presumption applies: States have the police power over the health and safety of their residents unless and until there’s a valid exercise of federal authority to override it.

About the Author

Dan McLaughlin

Dan McLaughlin is a senior writer at National Review Online and a fellow at National Review Institute.

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Consider the following situation. The Food and Drug Administration approves, for the first time, a controversial use of an existing medication with no supervision by a doctor. Take as an example the use of hydroxychloroquine to treat Covid. There are publicly reported deaths of its users, yet the FDA has also pared back the data that doctors need to report about adverse effects — data that the doctors may not even observe because they’re not seeing the people taking the drug. States try to ban the drug, but corporations are still mailing it to their residents for profit, so the states go to court to challenge the scientific basis of the FDA’s approval. When called out, the FDA admits that it didn’t study the issue, but never fear, it’s studying it now.

The states ask for a court order stopping the new regulation while the question is being studied. Sure, they say, the FDA may be entitled to some presumption that its scientific studies are valid when somebody challenges them — but here, they’ve admitted in court that they didn’t do any studies, and studies are the FDA’s whole thing. This isn’t like some policymaking agency that is permitted to enforce presidential policies based on its own moral and practical intuition and the experience of its agents in the field and can wait for the data to back it up. The FDA’s powers derive from empirical, scientific studies. So, if the agency hasn’t done the studies, it should have to wait to act until it has. In the meantime, the usual presumption applies: States have the police power over the health and safety of their residents unless and until there’s a valid exercise of federal authority to override it.