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The US Supreme Court and mifepristone







Court put on a bit of a show over the mifepristone litigation. Or, at least, the oral arguments were so widely and intensely followed it smelled a bit like a Barnum production. 

There is much that one might say about this dispute.  But this is the first time you will have seen anything about it in this humble blog, so for today I will just stick to some of the basics. 

Mifepristone is part of the standard medicinal protocol for  early-term abortions. Early here means within 70 days of a pregnant woman's last menstrual period. When it was first introduced in the United States the usual term was RU 486, and I am not sure when that more resonant term [it always sounds like a question, to be followed by "well, ARE YOU???"] lost favor. Was RU 486 a brand name? 

The percentage of abortions in the US that are medicinal rather than surgical has increased steadily since the approval of mifepristione here at the turn of the millennium. According to the CDC numbers, only 1% of abortions in 2000 were medicinal. But that was 10% in 2006, 24% by 2011, and a majority in 2020.  

The lawsuit now before SCOTUS was initiated roughly a year ago. Last April,  Judge Matthew Kacsmaryk issued a preliminary injunction suspending the 2000 approval. The Fifth Circuit almost immediatelt reversed parts of that injunction.  But not all. Specifically, the circuit court kept in place an injunction against changes in the relevant protocols (the Risk Evaluation and Mitigation Strategies) initiated by the FDA in 2016. 

The REMS for FDA approved drugs is not to be confused with the REM alt-rock band that was big in the 

The Supreme Court almost immediately stayed that injunction pending full consideration. Only two Justices dissented from that stay, Alito and Thomas. 

The argument last week was mostly about the issue of standing.  The plaintiffs in this case don't have any. Indeed, on that issue the oral argument seems to indicate that the plaintiffs have lost a vote in recent months, because Thomas was incredulous about the matter of standing. 

It looks very likely that the matter will be sent back to the trial court with instructions to dismiss for lack of standing, probably on an 8 to 1 vote. 

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