Supreme Court Rules In Favor of the FDA in Mifepristone Case

In its first ruling on abortion-related matters since the 2022 overturning of Roe v. Wade, the Supreme Court has ruled in favor of the FDA in the case FDA v. Alliance for Hippocratic Medicine, in which the latter group tried to challenge the administrative agency’s approval of the abortifacient Mifepristone.

While the drug in question, Mifepristone, was used in an increasing number of abortions before the pandemic, it still required an in-person appointment to be prescribed. During the Covid-19 pandemic, the FDA used its administrative authority to approve Mifepristone to be prescribed after a virtual consultation with a doctor. Mifepristone is now used for 63 percent of all abortions.

Due to the FDA’s unilateral and dubious decision to rule that the abortifacient was “safe,” the Alliance for Hippocratic Medicine had sued the FDA and won a favorable ruling last year, which was appealed to the Supreme Court. As The American Conservative contributing editor Carmel Richardson wrote in these pages last year, the case involves two of the sacred cows of the Left: abortion and the administrative state. The FDA’s case hinged on its ability to declare by administrative diktat that the drug is “safe.” The challenging suit argued that the FDA was acting improperly and that the drug is not safe for even the mother, as it has been documented to have caused fatal uterine hemorrhages. 

The Supreme Court’s ruling, which was unanimous in favor of the administrative agency, argued that “allowing doctors or other healthcare providers to challenge general safety regulations as unlawfully lax would be an unprecedented and limitless approach and would allow doctors to sue in federal court to challenge almost any policy affecting public health.” The ruling allows that a future suit could be successful if it shows “sufficient likelihood of future injury” resulting from the drug. 

As with the use of the FACE act to target pro-life demonstrators, the FDA’s approval of Mifepristone (and the impotence of the purportedly “conservative” Supreme Court) highlights the role that the ostensibly neutral administrative state plays in promoting liberal cultural causes and in punishing social conservatives. 

While the Supreme Court may have refused to disarm the administrative state today, there is still hope for conservatives in the former President Donald Trump’s plans to gut the bureaucracy if re-elected.