Mifepristone and the rule of law

[Nevilledog]

https://adamunikowsky.substack.com/p/mifepristone-and-the-rule-of-law


In 2000, the FDA approved a drug known as mifepristone for purposes of terminating pregnancies through 49 days’ gestation. The FDA concluded that mifepristone, when used in conjunction with a different drug called misoprostol, was safe and effective, and that the benefits of mifepristone exceeded the risks.

In November 2022, a group of plaintiffs, led by the Alliance for Hippocratic Medicine, filed a federal lawsuit in the Northern District of Texas seeking to overturn the FDA’s approval of mifepristone and force mifepristone off the market. The plaintiffs have filed a motion for a preliminary injunction, which is currently pending in the district court.

This lawsuit has gotten considerable attention from the press. Many articles have accused the presiding district judge of being biased based on his legal advocacy before his appointment as well as second-hand descriptions of his personal views. I view these attacks as inappropriate and unfair: the judge was entitled to represent whatever clients he wished before ascending the bench, and I see no basis for believing that the judge will act in bad faith in this case or any other.

I would prefer that commentary focused on the legal merits of the lawsuit, and that will be the subject of this post. Cutting to the chase: the plaintiffs’ legal theory is remarkably weak. Basic principles of administrative law, having nothing to do with abortion, squarely foreclose the plaintiffs’ claims.

I will not venture a prediction on how the Northern District of Texas or the Fifth Circuit will rule. If the plaintiffs prevail in those courts, however, the Justice Department is likely to seek emergency relief from the Supreme Court. In my view, the Justice Department will likely prevail. If the subject matter of this case were anything other than abortion, the plaintiffs would have no chance of succeeding in the Supreme Court. The plaintiffs are banking on the hope that because this is a case about abortion, the Court will bend ordinary principles of administrative law. I predict it will not.

*snip*