Our ‘conservative’ Supreme Court backtracks on life again

With the Supreme Court’s decision last week to let stand a lower court’s decision affirming state bans on so-called conversion therapy, the perverse notion that a man can be a woman is effectively the law of the land. Now, with the high court’s refusal to hear a case concerning the dangerous abortion drug mifepristone, the justices have essentially codified the idea that pregnancy is not an organic process of life but an illness.

You might have read headlines indicating the Supreme Court did, in fact, grant the appeal in Alliance Hippocratic Medicine v. FDA. In reality, the justices granted the appeal from the part of the Fifth Circuit Court of Appeals ruling the left wanted to see reversed but not the part for which pro-life activists were seeking review.

In what has become a disappointing pattern of cowardice from the justices on an array of issues following the landmark decision in Dobbs v. Jackson Women's Health Organization, the court has become a one-way street for conservatives.

Here's an overview of the procedural history. In November 2022, a group of pro-life doctors called the Alliance for Hippocratic Medicine filed suit in the U.S. District Court for the Northern District of Texas to overturn the FDA’s approval of mifepristone. They argued that the government’s approval process in 2000 was only authorized for drugs that treat “serious or life-threatening illnesses.”

While some pregnancies can lead to illness, the notion that a pregnancy is a serious illness on its face is both offensive and unlawful in the context of this particular FDA authority.

Being bold on the Constitution in a law school lecture hall does us no good if it doesn’t translate to the bench.

The pro-life doctors further argued that the regulatory changes loosening the use and dispensing of the drug in 2016 were unlawful. Also, the 2021 regulatory change allowing mail-in access to the drug violated the Comstock Act, which makes it a federal crime to mail any “article or thing designed … or intended for producing abortion,” as well as any “drug, medicine, or thing … advertised … in a manner calculated to lead another to use … it for producing abortion.”

Much like with the approval of the COVID shots, the FDA justified its decision in 2000 by noting that requirements for in-person doctor visits and dispensing requirements, gestational limits, and adverse event reporting would help ensure the drug wouldn’t turn into a disaster. In 2016 and again in 2021, the FDA undid all of those conditions.

On April 7, in a landmark ruling, District Court Judge Matthew Kacsmaryk ruled that the entire approval of mifepristone was unlawful. The much-vaunted “conservative” Supreme Court almost immediately issued a stay on Kacsmaryk’s decision. If only the high court’s conservatives would stop lower courts from undermining basic laws on immigration and the mutilation of minors with the same urgency that they block constitutionally sound appellate court rulings.

In August, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit ruled against the FDA’s regulatory changes made after mifepristone’s 2000 approval but not against the approval itself of the drug or its generic form. The Fifth Circuit’s majority opinion found that “in loosening mifepristone's safety restrictions, FDA failed to address several important concerns about whether the drug would be safe for the women who use it.” That was a win for life, but the judges reversed Kacsmaryk’s ruling, which struck down the entire approval of the drug.

The decision to uphold the 2000 FDA approval of the drug was supported by Judges Jennifer Elrod (a George W. Bush appointee) and Cory Wilson (a Donald Trump appointee). Judge James Ho (Trump appointee) wrote a partial dissent agreeing with the district judge that the original FDA approval violated the law.

“The FDA approved mifepristone under its Subpart H regulations,” Ho wrote. “But Subpart H only authorizes the FDA to approve drugs that “treat[] serious or life-threatening illnesses.”

Pregnancy is plainly not an “illness.” So it was unlawful for the FDA to approve mifepristone under Subpart H. To quote the Population Council, the entity that sought FDA approval for mifepristone in 2000: “Neither pregnancy nor unwanted pregnancy is an illness, and Subpart H is therefore inapplicable for that reason alone.”

A good ruling now in jeopardy

Despite the majority opinion upholding the drug’s original approval, conservatives were at least content with the victory striking down the new regulatory scheme that allowed the use of the drug so freely. Thus it was the government and abortionists who wanted the Supreme Court review to reverse the good part of the Fifth Circuit ruling, which countermanded the loosening of regulations on mifepristone.

Pro-life groups then demanded that if the Supreme Court felt inclined to hear the appeal, the justices should at least review the case in full to consider overturning the bad part of the Fifth Circuit ruling on the actual approval of the drug and reinstate Kacsmaryk’s initial ruling.

What happened? The alleged pro-life majority on the court took up only the opportunity to reverse the good part of the appellate court’s ruling.

Putting abortion aside for a moment, the fight over mifepristone should take on a new sense of poignancy in light of everything we now know about the COVID shots.

When a pharmaceutical product becomes an ideological cause for the left, we know that safety goes out the window. Mifepristone’s manufacturer concedes that between 100,000 and 350,000 (or 2%-7%) of users required surgery due to an adverse reaction to the drug. The FDA’s own label states that between 2.9% and 4.6% of women will end up in an emergency room. The drug is known to cause hemorrhaging, infections, and future fertility problems. One study found a fourfold elevated risk of complications with chemical abortions over surgical abortions.

Given the politics behind abortion (as with the COVID “vaccine”), does anyone really think the FDA did its due diligence?

In search of justices with guts

Last week was a quiet massacre at the high court for conservatives. The one-sided appeal of the chemical abortion case was granted around the same time the justices denied an appeal from the Seventh Circuit, which upheld Illinois’ unconstitutional ban on commonly held rifles and magazine capacities above 10 rounds.

Similarly, the court denied an appeal in a case seeking to overturn vaccine mandates. In all of these cases, as with bans on counseling for kids with gender dysphoria, the Republican-appointed justices understand the right side of the Constitution. The problem is they fear the political fallout from issuing the lawful ruling, so they opt to allow terrible lower court rulings to remain indefinitely.

The next Republican president needs to stop nominating stealth candidates with “noncontroversial” writings in the hope that they will pleasantly surprise us on the court. It is not enough to nominate someone who understands the Constitution in the abstract. We need justices who have the guts to embrace the appropriate opportunity to reverse bad rulings — whether they are current lower court opinions or prior, egregious Supreme Court decisions.

Being bold on the Constitution in a law school lecture hall does us no good if it doesn’t translate to the bench.