The FDA is Not God, & Other Analysis from the Supreme Court

Kristi Hamrick - 27 Mar 2024

It’s not often that life and death arguments are headline news, but that was the case as the Supreme Court heard arguments in U.S. Food & Drug Administration v. Alliance for Hippocratic Medicine that examined whether Chemical Abortion Pills were approved for sale recklessly and with weak protections in place for the women and girls taking them.

Making their separate cases were Solicitor General Elizabeth Prelogar on behalf of the Biden Administration’s FDA, attorney Jessica Ellsworth for the abortion pill manufacturer Danco, and Alliance Defending Freedom attorney Erin Hawley, representing pro-life doctors and the Alliance for Hippocratic Medicine.

As the Supreme Court Justices weighed in with questions, points of contention revealed some interesting conclusions on both sides, for those wondering if a decision goes 6-3 or 5-4, win or lose, it’s even money, depending on how you read the tea leaves in the questions.

Top Key Takeaways

On the All-Powerful Oz of the FDA and whether they must follow the law:

  • Biden’s FDA apparently has god-like immunity, as Prelogar answered “NO” when asked if anyone had standing – the legal right – to challenge the decisions made regarding Chemical Abortion Pills. Asked a second time, Prelogar said, “It’s hard to identify anyone who would have standing to sue.” (We can help you with that.)
  • But the FDA does not have god-like omniscience. Under questioning,  the abortion industry attorney Ellsworth was asked, “Do you think the FDA infallible?” “No, your honor,” and she admitted that FDA approved drugs have been pulled from the market.
  • The FDA should not get to ignore federal law. Hawley argues that no case or legal precedent empowers the FDA to ignore federal law … in this case, the Comstock Act that forbids mailing of Chemical Abortion Pills for abortion, something now permitted with the change in FDA regulations.
  • Except the FDA doesn’t need to worry about breaking Federal law, said the government’s attorney. Asked why the FDA did not really address the Comstock Act problem, Prelogar indicated “safety and efficacy” are the only factors for FDA decision making. (But would never articulate just HOW unsafe the Chemical Abortion Pills needed to be before we are allowed to worry.)
  • Old laws don’t count. Ellsworth also indicated that Comstock’s limits should not apply … ‘cause the law is old. (Wait until they get a look at the U.S. Constitution.)

On whether the FDA needs to bother with harms to women and girls:

  • The Biden Administration’s FDA finds it insignificant and “incremental” to strip away all the health and safety standards put in place in 2000 and slowly whittled away. Repeated asked how many need to be harmed to make the harms significant, Prelogar would not say. Asked is there a number at which your argument changes? She offered no math for the “Do No Harm” mindset. (But isn’t the FDA’s job to manage harms, not abortion industry interests?)
  • Even liberal Justice Sotomayor was more worried about an increase in ER visits than Biden’s FDA.Sure, said Prelogar, there seems in increase in ER visits but we don’t find other long-term complications, so it’s all good. (For abortion pill pushes, who outsource all the complications.)
  • The abortion industry doctor admitted that abortion data collection is spotty.Ellsworth said that abortion “data is certainly something we are looking for all the time” … ok then, LET’S HAVE A NATIONAL ABORTION REPORTING LAW … if it’s so “safe” … prove it. (And why has Danco failed to gather more data when they are supposed to track it?)
  • Money is a motive. Justice Alito asked Ellsworth what she was complaining about as the Fifth Circuit Decision allowed the business of Chemical Abortion to continue, but with more safeguards for women. Your “injury,” he noted to the abortion industry pitch-woman, is that you believe you’ll sell more product without the safety standards in place. (At the end of a rambling response, the answer was yes, business plays a role.)
  • Outsourcing problems IS the business model of the FDA & Chemical Abortion pill pushers.Hawley notes that the FDA acknowledges that ER visits on the rise but argues “it’s very design” is to force other doctors to deal with complications.
  • Justice Amy Coney Barrett knows more than Planned Parenthood on a D & C (Dilation & Curettage) surgical procedure. When a D & C procedure was discussed, which can be used to invasively end a life or, in the case of a miscarriage in which the baby has died, used to clean out the uterus, Justice Coney Barrett clarified the language. (Hey, Planned Parenthood, STOP MAKING WOMEN WHO GOT MISCARRIAGE CARE feel like they really got an abortion. )
  • Complications are not a problem … if you ignore emergency surgeries. Hawley made the brilliant point that the ONLY way the FDA can say that there are not “adverse events” is by ignoring emergency surgeries. And that in an emergency, pro-life doctors will be forced to finish an intentional abortion to save women’s lives. (Of course, that’s not a problem to the FDA or Danco.)

Left-leaning commentators will likely rely heavily for their analysis on the questions from the liberal justices who asked about limiting the ruling in this case to the handful of pro-life doctors who brought the complaint forward. They will ponder if a national decision about Chemical Abortion Pill availability is needed to address the conscience rights of a few. They will downplay the fact the ER visits are up, and emergency surgeries sometimes needed, something even Biden’s FDA admitted.

Compelling debate centered on the risks of Chemical Abortion Pills and just how bad those needed to be before change could be demanded from the FDA, which walled itself off from any challenges. The Biden Administration argued it’s only an “incremental” and insignificant change to allow No Test, Online Distribution that abandons women to injury, infertility, and death, as well as empowers abusers. Danco complained it wasn’t fair that their deadly product received so much scrutiny.

Maybe if your product didn’t kill people, your legal bills would be smaller. But I digress.

The fact that the risks of the deadly pills and the violations of conscience rights seem insignificant to Biden’s FDA and the mega-abortion business is why we were at the Supreme Court. And while we may not have a decision until early summer, all pro-life Americans can continue to let women know that there is help for all seeking life-affirming choices, no matter what a court decides.

And be warned: These Pills Kill.

Read more here: The Dangers of Chemical Abortion Pills for Endangered Species Represents Another Risk, Argues Students for Life of America in Amicus Brief to the U.S. Supreme Court  

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