The Supreme Court’s reversal of Roe v. Wade last June was decades in the making, culminating in a dramatic evisceration of women’s constitutional privacy rights and ability to obtain an abortion.
The new controversy over medication abortion, which has burst relatively suddenly on the legal scene, has the potential for another seismic ruling at the Supreme Court.
Yet it is a different kind of case and, ultimately, could bring a different resolution.
The challenge by anti-abortion physicians and medical groups tests the US Food and Drug Administration’s authority to review and approve drugs for use. It brings to federal courts nuts-and-bolts questions of agency protocols and judicial deference, including when and under what situations courts may jettison longstanding scientific determinations.
US District Judge Matthew Kacsmaryk in his Friday ruling put himself in the shoes of agency experts, declaring that they had failed to evaluate sufficiently the harms of the drug mifepristone, the first of a two-drug abortion regimen that has become the most common among women trying to end a pregnancy.
“The Court,” he wrote of his determination, “does not second-guess FDA’s decision-making lightly. But here, FDA acquiesced on its legitimate safety concerns – in violation of its statutory duty – based on plainly unsound reasoning and studies that did not support its conclusions.”
The US Department of Justice, on behalf of the FDA, forcefully rejected Kacsmaryk’s stance in a filing Monday as it seeks to postpone the effect of his ruling beyond this Friday as appeals are underway. If the ruling took effect, the drug could be unavailable nationwide by the end of the week.
Since 2000, when the FDA determined that mifepristone was safe and effective to terminate early pregnancies, government lawyers say, the agency “has…
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