BREAKING: Supreme Court to Consider Fifth Circuit's…

BREAKING: Supreme Court to Consider Fifth Circuit's Abortion Pill Decision

Today the Supreme Court granted certiorari in several cases to be heard later this term. Among the petitions granted were two seeking review of the U.S. Court of Appeals for the Fifth Circuit's decision in Alliance for Hippocratic Medicine v. Food & Drug Administration, which challenged the FDA's approval and subsequent regulation of mifepristone, a drug that is widely prescribed to terminate pregnancies (i.e. to perform a "medication abortions").

Specifically, the Court granted petitions filed by the Solicitor General and Danco Laboratories (the maker of Mifeprex, a brand of mifepristone). Interestingly enough, the Court did not grant the cross-petition for certiorari filed by AHM.

Based upon the questions presented in the two granted petitions, here is what will be before the Court.

First, and quite significantly, is the threshold question of standing. As I have blogged repeatedly (see posts below), I do not believe that the plaintiffs can satisfy the requirements of Article III standing under current doctrine. Both granted petitions ask the Court to consider standing–and even if they hadn't, because standing presents a threshold jurisdictional question, it would be a part of the case. The centrality of standing to this litigation is particularly interesting because (as happened in the California v. Texas ACA litigation) traditional Article III standing arguments cut strongly against litigants seeking a conservative policy outcome.

The petitions also ask the Court to consider whether the Fifth Circuit was correct to uphold the district court's injunction against the FDA's 2016 and 2021 decisions to revise and relax the conditions placed on the prescription of mifepristone. As framed in the petitions, the questions encompass both the conclusions reached on the merits (that the FDA's actions were arbitrary and capricious) and the relief ordered (a preliminary injunction).

What is not included in the cert grant is whether the Fifth Circuit was correct to reject AHM's attempts to challenge the FDA's initial approval of mifepristone in 2000 as untimely. As I have noted previously, I think this part of the Fifth Circuit's decision was definitely correct, as AHM's arguments relied upon an unduly aggressive reinterpretation of the "reopener" doctrine. The Supreme Court will also not review AHM's substantive argument that the FDA improperly approved mifepristone in 2000.

The bottom line is that the Supreme Court will consider whether the plaintiffs had standing to bring this case and, if so, whether the FDA properly relaxed its regulation of mifepristone in 2016 and 2021. The decision here will undoubtedly affect the availability of mifepristone, but the case no longer includes the question of whether the FDA should have approved mifepristone for the purpose of terminating pregnancies in the first place.

I have blogged a fair amount about the issues in this litigation, and plan to do more. Accordingly, I am indexing my posts here, and will update this list as I blog additional posts.