When we last posted on this in late July, more than 20 pro-life leaders, including NRL President Carol Tobias, had just written to the head of the FDA urging Dr. Stephen Hahn “to protect American women and preborn children by removing the abortion pill (mifepristone) from the US market.”
The need to do so was brought to the fore by District Judge Theodore Chuang’s July 14 decision to suspend an FDA rule, which among other things, requires a woman to have an in-person doctor’s visit before undergoing a chemical (“medication”) abortion during the COVID-19 pandemic.
In that same post, we noted that on July 24, the FDA filed a memorandum to stay (halt) Judge Chuang’s preliminary injunction pending an appeal.
There was additional evidence of more blowback to Judge Chuang’s very questionable decision Monday in the form of an amicus brief from 11 states supporting the FDA’s motion for a stay of the district court’s ruling.
Rules such as the requirement that mifepristone be dispensed only in a clinic, medical office, or hospital protect women’s health and “are not unduly burdensome even in the current public health emergency,” according to the brief filed in the 4th U.S. Court of Appeals.
“When a woman ingests mifepristone for the purpose of aborting a fetus, she not only ends the life of her unborn child, but also undergoes significant risks to her own body,” Indiana Attorney General Curtis Hill said. “Federal and state laws require physical examinations and in-person dispensing of mifepristone to ensure that physicians check for contraindications and that women fully understand the risks.”
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Writing for Law360, Kevin Stawicki explained
The lower court misapplied the Supreme Court’s ruling in June Medical Services v. Russo, which struck down a Louisiana law requiring abortion providers to have admitting privileges at nearby hospitals, by relying on a cost-benefit test for abortion laws, the states said.
U.S. District Judge Theodore D. Chuang improperly used the cost-benefit balancing test rejected by Chief Justice John Roberts when he should have adhered to the test that considers whether the law imposed an “undue burden” on abortion access, the states said.
“A balancing test that would invalidate laws without a substantial obstacle lies outside common ground shared with the chief justice, and therefore does not control,” Texas and the other states wrote in the brief.
In addition to the issue of which test Judge Chuang should have used, the amicus brief also argued that “Plaintiffs’ claim is also legally barred because Plaintiffs failed to exhaust their administrative remedies, ignoring the ordinary requirement that they submit scientific evidence for expert review by FDA regulators”; “Nor does evidence establish a uniform nationwide burden that justifies a national injunction, which forecloses evidence-based, local responses”; and before raising a challenge in federal court, “Plaintiffs were required to file a formal petition for relief with FDA based on science justifying the relief they seek,” which “they failed to do.”