On Tuesday, the Supreme Court heard consolidated oral argument in two cases, the importance of which cannot be overemphasized.
The subject of both cases — Food and Drug Administration v. Alliance for Hippocratic Medicine and Danco Laboratories v. Alliance for Hippocratic Medicine — is mifepristone, a medication used as part of a two-drug regimen to terminate early-stage pregnancies.
The ultimate issue to be resolved by the court is whether mifepristone, which a coalition of anti-abortion doctors and medical groups claim is "unsafe,” will remain available for purchase and use — even in states where abortion is still legal.
Attorney Ken Fulginiti frames the key legal issue here: “The plaintiffs have argued that the FDA did not act within its authority when approving mifepristone and that its approval violated certain laws. They also claim that the FDA failed to consider important safety risks and violated administrative procedures.”
Since the court overturned Roe v. Wade through the vehicle of the Dobbs case in 2022, ending women’s constitutional right to abortion, seven states have enacted restrictions on abortion and 14 have implemented complete abortion bans. Currently, more than half of all abortions that take place in the United States are medical abortions.
Thus the stakes for Tuesday’s oral argument are both historically and critically important, raising questions about medication abortion access, telehealth options for obtaining mifepristone, and the FDA's regulatory decisions.
Procedurally, how we landed here is fairly simple. Last August, the 5th Circuit rejected an attempt to overturn the FDA's original approval of mifepristone, which happened back in 2000. The plaintiffs argued the regulatory agency failed to “adequately consider” the drug's safety and effectiveness. At the same time, the 5th Circuit restructured the FDA measures that had increased access to mifepristone, including its use later in pregnancy. This led the drug’s manufacturer, Danco Laboratories, and the FDA to ask the Supreme Court to grant certiorari to reconsider the ruling of the 5th Circuit.
Practically, the plaintiffs’ claim is just an opening by which to further wade into post-Roe v. Wade waters.
From the time the Supreme Court granted an emergency application for stay last April, ensuring that mifepristone would remain available pending further litigation, to the time the Supreme Court granted a petition for a writ of certiorari in December, everyone with an interest in the future of Roe, Dobbs and abortion rights has been looking forward to March 26 in the same way many people look forward to the Super Bowl — we know it’s going to be huge but aren’t sure what we’re really going to see.
It turns out the oral argument was far more linear and narrow than anticipated.
One of the key areas explored in oral argument was whether the plaintiffs have standing in this case. They needed to show the court that they will face actual harm from the widespread availability of the abortion pill.
Counsel for the manufacturer, Danco, argued that if plaintiffs do have standing, it could lead to a surge of lawsuits from doctors opposing a drug or regulation.
“They can’t rely on some fictitious legal standing, like the lower court did,” Solicitor General Elizabeth Prelogar said at the beginning of oral arguments. “There simply is no cognizable injury that is not speculative here.”
That’s going to be the Supreme Court’s way out here. Rather than actually addressing the constitutionality of any of this, from my vantage point, the court will pull the Homer Simpson meme and just back into the bushes here by agreeing with Prelogar and holding that the plaintiffs have no standing.
The die was cast when Justice Sonia Sotomayor asked counsel for plaintiffs who, exactly, has standing here — because you need to pick someone. There was no good reply to this question, but in choosing two of the doctors who challenged the FDA’s approval, things went downhill fast.
These doctors, it was argued, would have to provide medical care that “violated their conscience,” but the preponderance of questions that followed from the justices highlighted that this was speculative at best and fiction at worst.
What the totality of Tuesday’s oral argument will almost certainly do, in practice, is get the Supreme Court out of what is a legally miserable case. These cases are not the battleground the court wanted to further define the post-Roe era — they're just not factually or legally compelling. The lower courts had no business finding that the plaintiffs had standing, so the Supreme Court just fixed the glitch here.
Once this case is resolved, there will be the next abortion battle and, surely, another, until this or a future incarnation of the Supreme Court finds a case that either deepens and solidifies the roots of Dobbs or essentially discards it and brings back Roe.
Aron Solomon, JD, is the chief strategy officer for Amplify. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Newsweek, Fast Company, Fortune, Forbes, CBS News, CNBC, USA Today, ESPN, Abogados, Today’s Esquire, TechCrunch, The Hill, BuzzFeed, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, and many other leading publications across the globe.
