Dear John,

The Supreme Court heard oral arguments Tuesday in Food and Drug Administration v. Alliance for Hippocratic Medicine, the case that challenges the FDA’s 2016 and 2021 actions that removed patient health and safety safeguards for chemical abortion drugs. AUL was privileged to represent the pro-life views of 145 Members of Congress before the Supreme Court (brief here), who told the Justices that the FDA’s determination to subvert its statutory authority and promote access to this dangerous drug has created significant health and safety risks for women and girls.

AUL’s lawyers were in the courtroom and monitoring the argument online as counsel for the Alliance argued that “[t]he lower court’s decision merely restored longstanding and crucial protections under which millions of women used abortion drugs.” The Supreme Court will now decide whether Alliance for Hippocratic Medicine has legal standing to challenge the FDA’s actions, and whether those actions were unlawful. The case could impact several critical aspects of law, including health care conscience rights and the health and safety safeguards for women and adolescents seeking chemical abortion drugs.

AUL will post a thorough analysis of the argument by Litigation Counsel Carolyn McDonnell on Monday, but for now allow me to mention what were the highlights for me as I listened to the proceedings:

Chief Justice John Roberts inquired at length of lawyers for the Biden Administration and Danco (manufacturer of the abortion drug) whether some significant percentage of women hurt and hospitalized by the drug would give the AHM doctors the right to sue to stop it, and appeared surprised when they would not agree that any level of harm from the drug would be enough.
Justice Clarence Thomas asked FDA’s lawyer that if the Court agreed Alliance for Hippocratic Medicine does not have standing, then “who would have standing to challenge [] these FDA actions?” Justice Thomas and others, including Justice Samuel Alito, appeared incredulous that no one, as the lawyer for the Biden Administration contended, could challenge the FDA’s decisions. Justice Alito questioned the FDA whether “[its] argument is that it doesn’t matter if FDA flagrantly violated the law, it didn’t do what it should have done, endangered the health of women, it’s just too bad, nobody can sue in court?”[1] Justice Alito went through different hypotheticals, questioning the FDA whether there would be standing for states, a pro-life emergency room doctor who must treat a woman suffering chemical abortion complications, a woman herself who suffers chemical abortion, or “anybody who can sue and get a judicial ruling on whether what FDA did was lawful?” In each case, the administration’s advocate claimed FDA could not be sued.
On the other hand, a high note occurred when the Biden Administration’s lawyer admitted – for the first time in court – that pro-life doctors and nurses enjoy numerous protections for their convictions in federal law, including the Church Amendments and other measures that have been part of American law since the 1970s. Justice Brett Kavanaugh asked her “[j]ust to confirm on the standing issue, under federal law, no doctors can be forced against their consciences to perform or assist in an abortion, correct?” The FDA confirmed “that federal conscience protections provide broad coverage here. . . . The Church Amendments have the most comprehensive protection here, and we think that those amendments guard against the kind of injury that Respondents are asserting.” Thus, at the very least, even if the Alliance is unable to convince the Court to set aside the FDA’s chemical abortion rules at this time, it may still issue for the first time a resounding affirmation of their right not to participate in abortions.

Please continue to pray with me for the outcome of this case, and closely follow the arguments and the decision on www.aul.org. We are privileged to stand beside you and the courageous men and women in Congress who value life more than their political fortunes. America needs many more like them!

Sincerely,