WOULD JUSTICE ALITO RATHER RUN THE FDA?
Justice Samuel A. Alito Jr. somehow comes off as unhappy and aggrieved even when he’s winning — which is often these days, given the court’s conservative supermajority. So, it was no surprise that Alito, clearly on the losing side in the latest abortion case to reach the high court, sounded so peeved at the notion that American women might keep their access to abortion medication and so desperate to find a rationale for restricting it.
Alito’s blood has been boiling over the abortion drug mifepristone for almost a year. He issued an angry dissent last spring when the court allowed the current Food and Drug Administration rules easing access to the medication to remain in place while the case made its way through the lower courts.
And Alito was in peak form at Tuesday’s oral arguments on the regulations. There was no argument against mifepristone that he wasn’t willing to deploy. Why, Alito demanded of Solicitor General Elizabeth B. Prelogar, didn’t the FDA take the 151-year-old Comstock Act into account in determining whether to allow mifepristone to be sent through the mail?
Prelogar’s answer was convincing: Under the law, the FDA can look only at a drug’s safety and efficacy; whether the antiquated statute applies to mailing abortion drugs is beyond its purview. Alito wasn’t satisfied. “This is a prominent provision,” he said. “It’s not some obscure subsection of a complicated, obscure law … Shouldn’t they have at least addressed it?”
That wasn’t all. Alito wasn’t happy that the FDA didn’t have more to say about increased trips to emergency rooms after allowing mifepristone to be dispensed by mail. (Answer: It did address that.) He wasn’t happy that the FDA failed to consider the combined effect of its changes. (Answer: again, it did.)
Someone, give that man the job he really wants and make him FDA commissioner.
Or maybe not. “Do you think the FDA is infallible?” Alito quizzed Jessica Ellsworth, the lawyer for Danco, which manufactures mifepristone. He accused Danco of, gasp, capitalism. “So you’re going to make more money” if the easier access to mifepristone remains in place, Alito remarked to Ellsworth. Like that’s a bad thing?
Alito consistently reaches his preferred, conservative result. One way to look at this involves an issue central to the mifepristone case: standing, whether a plaintiff has shown enough of a “concrete” and “particularized” injury to have the right to sue.
Last year, appellate lawyer Adam Unikowsky examined a decade of ideologically charged cases in which the justices were divided on standing. In theory, standing shouldn’t have anything to do with the underlying merits of the case. But Alito was the only justice who had voted on more than one case and whose record aligned perfectly with his ideological predispositions: There were zero cases in which he found that a conservative litigant lacked standing, and zero cases in which he found that a liberal plaintiff had standing to sue.
So, there was Alito during the oral arguments, grilling Prelogar over who, if anyone, could challenge the FDA’s mifepristone regulations and lamenting her answer — seemingly accepted by most if not all of the other justices — that the Supreme Court’s precedents on standing would make that difficult.
“So your argument is that it doesn’t matter if [the] 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?” Alito challenged Prelogar. “There’s no remedy? The American people have no remedy for that?”
What a fascinating insight into Alito’s mind-set. The FDA approved the use of mifepristone for abortion in 2000. In 2016 and 2021, it made the medication easier to obtain — expanding the use from seven to 10 weeks of pregnancy, reducing the number and then eliminating the number of required in-person visits, and allowing medical personnel other than doctors to write prescriptions. There has been no reliable evidence of resulting harm.
The American people — that is the American people seeking to exercise a right that Alito voted to deny them — have been utilizing the availability of medication abortion in record numbers. The Guttmacher Institute recently reported that 63% of abortions are performed using medication. These “American people” might be demanding a remedy if mifepristone access were curtailed.
But, of course, they are not Alito’s concern. He is moved by a group of antiabortion doctors who claim they have been harmed by the expanded access to mifepristone because, in theory, a woman who took mifepristone could end up in an emergency room where they are working with an abortion that is incomplete and requires additional intervention. Although they would be entitled to invoke federal conscience protections, they claim they could still be conscripted into helping her.
This is, as the other justices seemed to recognize, a farfetched theory of standing. That doesn’t faze Alito, the author of the majority opinion in Dobbs v. Jackson Women’s Health Organization, which eliminated the constitutional right to abortion.
Alito will find standing where it suits his purpose and deny it when it doesn’t. He will get to the desired result. And when it comes to abortion, the result Alito desires isn’t, as he claimed in Dobbs, to return the contentious issue to the people to decide for themselves. It’s to make abortion as hard to obtain as possible, in states where it remains within reach.