On March 26th, the Supreme Court heard oral arguments in FDA vs. The Alliance for Hippocratic Medicine, where the Alliance argued they had Article III standing for challenging FDA’s continued distribution of the drug Mifepristone, used in medication abortions. Arguments on behalf of the FDA were made by Solicitor General Elizabeth Prelogar and Jessica Ellsworth, a petitioner on behalf of Danco Laboratories (a company which sells Mifepristone). Erin Hawley argued on behalf of the Respondents (members of the Alliance for Hippocratic Medicine). The arguments largely focused on whether Respondents had presented sufficient evidence to adequately allege Article III standing, that use of the drug presents concrete, actual or imminent threat of injury that is traceable to the distribution changes made in 2016 and 2021. 

Ms. Prelogar and Ms. Ellsworth argued against Article III standing for the Respondents. First, they noted  that the Respondents provided no statistical theory of injury or example of women harmed, much less a basis for connecting adverse side effects with the changes implanted in 2016 and 2021. They also argued that the minute number of women experiencing serious compilations as a result of using Mifepristone is not enough to warrant concern. Even if there were more women who had serious complications, Ellsworth and Prelogar alternatively argued that even if more women experienced complications, the remote possibility of those women being treated by a doctor who morally opposed abortion did not satisfy Article III standing. This harm, according to Prelogar and Ellsworth, is too circumstantial and attenuated. 

Ms. Hawley, on behalf of the respondents, presented  a three pronged argument for why the Court should affirm this case satisfies Article III’s standing requirements. First, the FDA depends on hospital obstetricians, some of whom oppose abortion a, for treatment of women suffering from abortifacient complications. Second, that women taking Mifepristone  are more likely to end up in ER. In fact, the FDA conceded that 2.9 to 4.6 percent of women who take Mifepristone end up in the emergency room. Third, the FDA further admitted that women taking Mifepristone are more likely to need surgical intervention or other medical care without in person visits. All these factors together, mean that health threats to women consuming the abortifacient and the threat of doctors having to compromise their morals to treat these women are both incredibly prevalent. 

It remains to be seen whether the Justices recognize the legitimate threat to women’s health and to doctor’s moral freedom. Justice Alito posed an excellent question during the argument to Ms. Ellsworth: do you think the FDA is infallible? 

We must recognize that the FDA can make mistakes and protecting women and their health as well as maintaining our country’s foundational belief of moral and religious freedom should be the Court’s top priority here.