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At some point in the very near future\u2014possibly by Friday\u2014the Supreme Court will be asked to weigh in on US district judge Matthew Kacsmaryk<\/strong>\u2019s ruling<\/a> invalidating the Food and Drug Administration\u2019s 23-year-old approval of mifepristone, the drug used in about half of all abortions nationwide. (Kacsmaryk oh so generously stayed his own order for seven days, meaning mifepristone should remain available until then.) Should the high court uphold the Trump-appointed judge<\/a>\u2019s ruling, it would be a devastating blow to abortion access nationwide\u2014including in states where abortion is legal<\/a>\u2014and have a profound, life-altering impact on countless pregnant people. But upholding Kacsmaryk\u2019s decision wouldn\u2019t just affect mifepristone; it would, according to legal experts, give anyone seeking to get a particular drug removed from the market the opportunity to do so.<\/p>\n If that sounds like a really f–king crazy, extremely scary, and wildly ill-conceived idea, rest assured it is indeed all of those things. But will SCOTUS actually let Kacsmaryk\u2019s ruling stand? Let\u2019s take a closer look.<\/p>\n As The New Republic<\/em> notes<\/a>, there are significant problems with Alliance for Hippocratic Medicine v. FDA.<\/em> For one thing, there\u2019s the matter of timeliness: A six-year statute of limitations seemingly precludes challenging the FDA\u2019s approval of mifepristone, which the agency green-lit more than 20 years ago<\/em>. (For his part, Kacsmaryk disagreed with the plaintiffs\u2019 \u201clogic\u201d that the clock was somehow reset to 2021 after the agency denied a petition concerning a 2016 action by the FDA…and then he proceeded to act like the suit was valid anyway.) Another issue is the matter of standing to bring the lawsuit at all. As TNR<\/em> writes:<\/p>\n While every lawsuit is different, they must all meet the same basic conditions or a judge will throw them out. One of those conditions is that whoever files the lawsuit must have the legal standing to bring it. People generally can\u2019t file lawsuits to right wrongs on behalf of their friends, their neighbors, or total strangers. If you\u2019re going to sue, you have to have a legal injury to do it. And if you\u2019re going to sue based on something that might happen, you have to show that whatever you are theorizing\u00a0might<\/em>\u00a0happen will almost certainly occur.<\/p>\n The Justice Department, which appeared on behalf of the FDA, told the Fifth Circuit Court of Appeals in a brief on Monday that the plaintiffs\u2019 claims were too speculative and hypothetical to meet those thresholds. \u201cPlaintiffs do not prescribe mifepristone,\u201d the department noted in its brief. \u201cInstead, they speculate that other doctors will prescribe mifepristone; that those doctors\u2019 patients will experience exceedingly rare serious adverse events; that those patients will then seek out plaintiffs\u2014doctors who oppose mifepristone and abortion\u2014for care; and that they will do so in sufficient numbers to burden plaintiffs\u2019 medical practices.\u201d<\/p>\n<\/div>\n<\/blockquote>\n We\u2019re no lawyers, but that sure sounds like a pretty weak argument\u2014and yet!<\/p>\n Despite this, Kacsmaryk concluded that this was enough for the plaintiffs to meet the standing threshold. His explanation largely consisted of restating the plaintiffs\u2019 assertions without further analysis. At one point, he concludes that the plaintiffs have standing because they \u201callege adverse events from chemical abortion drugs can overwhelm the medical system.\u201d It would be one thing if those claims were made about a brand-new drug that hadn\u2019t been adopted on a national scale before. But if that were true about mifepristone, then the medical system would already be overwhelmed because it has been on the market for almost a quarter-century. Someone would have noticed by now.<\/p>\n<\/div>\n<\/blockquote>\n If the Supreme Court effectively decides, in upholding Kacsmaryk\u2019s ruling, that basically anyone at any time can bring a suit challenging some drug, medications that were approved decades ago\u2014that have been proven to be safe and effective and that millions of people rely on\u2014could suddenly be at risk because someone doesn\u2019t like them. Perhaps you can think of a couple classes of drugs that might suddenly be on the chopping block in this scenario?<\/p>\n\n
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