The Alliance Defending Freedom’s last Supreme Court argument was purely hypothetical. The conservative Christian legal advocacy organization, which has been behind some of the most significant anti-abortion litigation and anti-LGBTQ lawsuits in recent history, was representing a Colorado graphic artist who claimed to be beginning a wedding website and wanted to know how much money he could make.
[[{“value”:”Their case was totally speculative the next time Alliance Defending Freedom lawyers argued before the Supreme Court. The traditional Christian legitimate advocacy group represented a Colorado graphic designer who claimed to be starting a wedding website business and wanted the right to deny service to same-sex couples. It was the force behind some of the most significant anti-abortion and anti-LGBT cases in recent history. The designer had never designed a wedding website before, and it eventually became clear that the only indication that a gay couple wanted her to do but appeared to be fake. None of that mattered. The court’s guarantee that she would n’t be punished led to the creation of a new anti-discrimination loophole in the country.
On Tuesday, another ADF lawsuit will be heard at the Supreme Court. Once more, the case rests on a hypothetical: That a member of a small anti-abortion doctors ‘ alliance might one day have to take care of a patient who is a rare and serious complication from an FDA-approved abortion pill that the American Medical Association deems to be as safe as Tylenol. Apparently, the case speculates, that doctor might be forced to administer that patient an emergency abortion, violating their anti- abortion convictions.
After a review revealed “fundamental problems” and “material errors,” the studies cited in the case were removed.
This lawsuit—known as FDA v. Alliance for Hippocratic Medicine—aims to limit the availability of mifepristone, the second pill in the two- drug regimen widely used in medication abortions. ADF accuses the FDA of “betraying women and girls” on behalf of the anti-abortion doctors when it approved mifepristone 23 years back by ignoring potentially harmful side effects and after making it easier to get. The case has the ability to lead to the most significant abortion decision since 2022, when the court upheld a Mississippi law that had been written by ADF in its Dobbs decision. Since that decision, 14 states have made it illegal to perform abortion in almost all cases, and seven more have restricted abortion to earlier in pregnancy. Then, with Tuesday’s case, the Supreme Court could loosely limit access to mifepristone—even in blue states that protect people’s right to end their pregnancy.
The lawsuit first made headlines last spring when a federal judge in Texas, Matthew Kacsmaryk, issued an extraordinary order to take mifepristone off the market completely, nationwide. Kacsmaryk, a Trump appointee and past lawyer for a catholic- proper firm, purported to place a” stay” on the FDA’s 23- year- old approval of mifepristone, which has been used by millions of expectant people in the US over the last two decades. The controversial judge’s decision to hear the case was n’t accidental. ADF carefully filed in Amarillo, Texas, where Kacsmaryk heard 95 percent of legal cases—and where any appeals are directed to the extremely right- leaning Fifth Circuit.
Fortunately, Kacsmaryk’s order never took effect, as the Biden administration quickly appealed the case up to the Supreme Court, which hit pause until the justices got a fuller chance to consider the arguments. The ADF is then finally in the lead as it prepares to fight off in front of the high court with the Justice Department and Danco, the manufacturer of brand-name mifepristone.
The Supreme Court has already decided not to review the portion of a ruling by the conservative Fifth Circuit, which, while supporting most of the doctors ‘ arguments, decided it was too late for ADF to challenge the FDA’s initial approval of mifepristone, as has happened since Kacsmaryk’s order. A number of upcoming FDA rule changes that made the drug more accessible are also at risk. The Kaiser Family Foundation claims that the agency cut the recommended dosage by two-thirds, made it possible for qualified nurse practitioners and physician assistants, and allowed mifepristone to be prescribed up to 10 weeks into pregnancy rather than seven. This almost doubles the number of patients who experience it, according to the Kaiser Family Foundation. Patients can now receive mifepristone at one appointment, without follow-ups, thanks to the reduction in the number of necessary clinic visits from three to one.
Five years after, in response to the Covid pandemic, the FDA cut the office visit requirement—opening the door for telehealth prescriptions and mailed pills. In the wake of the decision, it became less expensive and simpler than ever to have an abortion in the early stages of pregnancy, especially for those who ca n’t take time off from work, lack transportation, or are experiencing domestic violence. By next September, 16 percent of all abortions were done using telehealth, according to research by Ohio State University, the University of California- San Francisco, and the Society of Family Planning.
In their lawsuit, the anti- abortion doctors contend the FDA put patients in danger by removing these requirements, specifically the office visit. The data is n’t on their side: Last month, a study in the journal Nature Medicine looked at 6, 000 medication abortions provided by online clinics, and found that about 98 percent of them were successful in without any further intervention, and 99.8 percent were” not followed by severe adverse events”, as my colleague Julianne McShane reported.
From the beginning, the anti- abortion doctors ‘ arguments have been cloaked in such faux concerns about mifepristone’s safety. The doctors cited flimsy research that suggested mifepristone was harmful in their original complaint, contending that the FDA had not had enough evidence to impose restrictions on it. Mainstream medical associations have completely refuted those claims, explaining that mifepristone is supported by decades of evidence. Around 6 million people in the US have taken the drug since it was approved in 2000, making it used for years for abortions in Europe even before it became available in the United States. More than 100 scientific studies have proven to be reliable in preventing pregnancy, according to the New York Times.
Meanwhile. It turns out that some of the studies that the doctors cited were n’t at all scientific. One, relied on in Kacsmaryk’s decision, was based on anonymous blog posts from a site called” Abortion Changes You”. Last month, a journal retracted three other papers cited by ADF in the case, explaining that an independent review had found “fundamental problems”, “incorrect factual assumptions”, “material errors”, and “misleading presentations”. The authors of the studies ‘ publications, Sage, reported that nearly all of them had connections to pro-choice organizations and had not disclosed any conflicts of interest.
Of course, the real reason mifepristone is a target is n’t a result of science, but rather simple math: Medication abortions are immensely popular, accounting for nearly two- thirds of all abortions across the country. Providers there can now prescribe the pills to patients in states with abortion bans thanks to recently enacted” shield laws” in a few states, including California and Massachusetts.
The doctors cited flimsy studies that suggested mifepristone is harmful.
If the Supreme Court first decides that the Alliance for Hippocratic Medicine doctors do n’t even have legal standing to bring the case, the court may not even be able to rule on the appeals. It all comes down to that original hypothetical. Because the doctors do n’t personally prescribe mifepristone, Alison Clapman at the Brennan Center for Justice explains, they’ve had to settle for the claim that they face “imminent” harm from FDA decisions that increase mifepristone access because they have had to settle for arguing that they face “imminent” injury. An emergency physician who is a member of their group will likely be forced to treat a patient with mifepristone complications at some point in the future and will likely experience psychological harm as a result.
In its petition to the Supreme Court, Danco claimed that the doctors ‘ claim rests on a” series of contingencies” including the fact that a woman will seek care from one of the members of the group of respondents, as well as the fact that she will receive medication from another provider.
According to Danco, it was unclear whether this fictitious patient would require an emergency abortion or whether the doctors would have to give it up rather than refer her to a colleague as federal conscience laws permit. ” To describe those theories ]of standing ] is to refute them”, the company wrote. This Court has consistently rejected theories of standing based on a” speculative chain of possibilities.” especially where, as here, those possibilities depend on’ unfettered choices made by independent actors.'”
It would be simple for the judges to toss the case out because of lack of standing in order to maintain the status quo. But remember, this is the court that overturned Roe v. Wade, and it could be eager to use Tuesday’s case to seize a similar opportunity. The court’s conservative majority will not take another swipe at abortion access, it remains to be seen whether judicial norms around standing, much less the weight of the scientific record, will prevent them.”}]] Their case was entirely hypothetical the next time Alliance Defending Freedom lawyers argued before the Supreme Court. A Colorado graphic designer claimed to be starting a wedding website business, and the traditional Christian legitimate advocacy group was representing him.
The Alliance Defending Freedom’s last Supreme Court argument was purely hypothetical. The conservative Christian legal advocacy organization, which has been behind some of the most significant anti-abortion litigation and anti-LGBTQ lawsuits in recent history, was representing a Colorado graphic artist who claimed to be beginning a wedding website and wanted to know how much money he could make.
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