Abortion Pills, Part II: Deciding factors of the SCOTUS Mifepristone case

In three months, the Supreme Court is expected to announce a landmark ruling on the FDA’s approval of the abortion pill mifepristone in the case U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine. The case will come down to two main issues:

Whether or not Alliance for Hippocratic Medicine (AHM) has Article III standing to challenge the FDA’s actions.
Whether the FDA’s actions were “arbitrary and capricious” in their approval and subsequent regulatory changes in 2016 and 2021.

AHM, a group composed of pro-life doctors and medical professionals, is arguing that they have standing in this case because due to the FDA’s approval of chemical abortion pills, they are required to treat women harmed by the drug and sometimes required to complete elective abortions, violating their moral values and the Hippocratic Oath.

“Article III is satisfied here because one, the FDA relies on OB hospitalists to care for women harmed by abortion drugs. Two, the FDA concedes that between 2.9 and 4.6 percent of women will end up in the emergency room. And three, the FDA acknowledges that women are even more likely to need surgical intervention and other medical care without an in-person visit,” AHM’s attorney stated before the court.

Standing is a significant issue in this case – if the justices rule that AHM has not provided sufficient harms and does not have standing, the case will be dismissed even if the FDA acted illegally in approving the drug.

If the justices rule that AHM does have standing, next they must prove that the FDA’s approval was “arbitrary and capricious.” The Montana Supreme Court found that “a decision is arbitrary if it comes about seemingly at random or by chance or as a capricious and unreasonable act of will. It is capricious if it is the product of a sudden, impulsive and seemingly unmotivated notion or action.” This finding exemplifies the justice system’s general understanding of the “arbitrary and capricious” standard, and some version of this interpretation will likely be used by SCOTUS in this case.

We wholeheartedly agree with Alliance Defending Freedom: “The FDA’s approval of chemical abortion drugs has always stood on shaky legal and moral ground, and after years of evading responsibility, it’s time for the government to do what it’s legally required to do: protect the health and safety of vulnerable girls and women.” (emphasis added)

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