If nothing else, the newest justice of the U.S. Supreme Court, Ketanji Brown Jackson, should be commended for the unintentional levity she has brought to the court. Whether it’s her refusing to define what a woman is or realizing for the first time that the First Amendment is intended to be a restraint on the government, she certainly has a gift for the obtuse.
This gift was recently on full display in the hypothetical she posited in the oral arguments for Murthy v. Missouri when she asked whether the government should be able to erase popular posts on social media that encouraged kids to jump off buildings. Not only is posting such content illegal, as Joy Pullmann notes at The Federalist, but this whole scenario is absurd.
Then again, maybe it isn’t. In Food and Drug Administration v. Alliance for Hippocratic Medicine, a group of doctors is charging the FDA with wrongly approving and under-regulating the abortion drug mifepristone. Despite the lack of studies to prove the safety of the drug, the FDA fast-tracked its approval in 2000 and removed the restrictions in 2016 that were originally put in place to justify the fast-track. With the drug becoming more easily available, it has quickly become a workaround for women to procure abortions in states that place limits on the practice.
In other words, a popular trend has arisen that encourages mothers to take a pill that kills their babies in the womb and possibly does severe harm to themselves. In the interest of protecting life, it seems logical that the government should take action against this trend, either banning mifepristone or restoring the preexisting restrictions. In light of the Comstock Act, which forbids the use of the U.S. Postal Service to transport abortifacients, none of it should be crossing state lines.
However, nothing like this was debated in the oral arguments. Rather, the lawyers and justices debated whether the group bringing the charge, an association of health care professionals, had legal standing. As legal experts Thomas Jipping and Sarah Parshall Perry helpfully explain at The Daily Signal, legal standing requires three things: “a concrete legal injury, one that was caused by the defendant, and that a court can remedy.”
Essentially, the FDA argued it was none of these doctors’ business what the department decides about mifepristone, and the plaintiffs had to argue why it actually was their business.
In this regard, the plaintiffs asserted women entering the emergency room with injuries caused by mifepristone and possibly needing emergency abortions did in fact constitute an injury to doctors who don’t want to perform them. Although the case hasn’t yet been decided, the justices were skeptical about this argument since it seemed primarily based on hypotheticals — which apparently only work for arguments about government censorship.
Justice Elena Kagan led the charge against the plaintiffs for having standing, accusing them of using “very probabilistic” reasoning. Evidently, unless the doctors themselves were suffering from botched abortions after taking mifepristone and had the receipts showing that it was the drug and only the drug that caused the injury, then they have no right to complain. Americans will just have to learn the hard way that mifepristone is poison and make their case all over again when they have the requisite standing to prove it in court.
On the conservative side, it was mostly Justice Neil Gorsuch speaking up — also against the plaintiffs. While Kagan complained that the doctors were not sufficiently harmed by mifepristone, Gorsuch complained it was out of place for the court to do what the doctors requested, which was to force the FDA to reestablish the old restrictions for using mifepristone. Apparently, this is something only lower courts could do, not the highest court of the land. Perhaps one just has to be a true textualist to understand this argument.
As for violating the Comstock Act, Justices Clarence Thomas and Samuel Alito were the only ones to bring this up. But because this issue was ignored by lower courts when plaintiffs included it in their case, this will likely be ignored by the Supreme Court as well. Although there was no answer to Thomas’ question of why the makers of mifepristone can brazenly violate the law, it seems to be understood that this is simply what’s necessary now that Roe v. Wade has been repealed.
Thus, it looks like the justices will rule in favor of the FDA and make Jackson’s scenario of a murderous trend going viral a government-endorsed reality. It’s telling that the whole conversation centered on what amounts to a technicality. As for a large government department fast-tracking a drug that can kill babies and harm mothers without even providing sufficient evidence of its safety, this doesn’t seem to be a conversation anyone, leftist or conservative, wants to have.
As usual, it’s left to grassroots organizations to campaign against the use of mifepristone — though the media may very well label this “misinformation” as they have with critics of birth control pills. Even laws prohibiting the interstate delivery of the drug can be waved away when the government says so.
If the Supreme Court justices rule in favor of the FDA, they will have missed an important opportunity to safeguard the lives and health of American mothers and to curb the tyrannical ambitions of Big Pharma and the administrative state.
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