The Alliance Defending Freedom was back in court this week arguing on behalf of pro-life doctors in FDA v. Alliance for Hippocratic Medicine. There are two major components of the case:
So far, the two lower courts said YES to both questions; we hope the Supreme Court will agree with them. Here are three key moments from Tuesday’s oral arguments:
1. “Do you think the FDA is infallible?” The government’s position is that nobody can challenge the FDA’s decisions but if doctors have concerns, the FDA would listen. Justice Alito seemed especially to take issue with the idea that nobody can sue the federal government and that we should trust that they are open to critique. In reality, this case exists because pro-life doctors spent two decades trying to report their personal experiences treating women with complications. Studies using Medicaid data show that the rate of abortion drug-related ER visits increased more than 500% from 2002-2015. Yet these doctors were uniformly shut down or ignored, and the FDA has chosen to disregard research from the Charlotte Lozier Institute and others that shows abortion drugs are not safe.
2. Can’t ER docs just opt out? Erin Hawley for AHM repeatedly raised the fact that ER doctors’ involuntary involvement in chemical abortions is by design because the FDA recognized that some percentage of women will need to be treated for complications in the emergency room. This is because the abortionist doesn’t have the expertise, facilities, or geographic proximity (in the case of drugs sent through the mail) to treat complications like hemorrhage, infection, or ruptured ectopic pregnancy. While the justices spent a chunk of time on conscience remedies for individual doctors, the FDA’s policies are fatally flawed because emergency room doctors nationwide are conscripted into treating the 4-7% (by the FDA’s own count) or more of cases in which something goes wrong and a woman or girl suffers complications and needs care.
3. Trust “the Experts.” Neither the FDA nor Danco, the drug manufacturer, has patient safety as its top priority. After admitting that abortion drugs are the only product the company sells, Danco’s lawyer acknowledged that any additional regulations on the drugs, like the ones in place from 2000-2016, are a financial burden on the pharmaceutical company, and that while Danco “cares about data,” it sees no reason to reinstate complications reporting. The FDA was taken to task for failing to consider how its various prescribing changes would affect women and girls’ safety when taken together and admitted that prescriber convenience was a factor that weighed against patient safety when making changes like allowing drugs to be sent through the mail. It does not think either the agency or the American people need to know how many women are harmed by these drugs –just trust the experts.
The doctors say they aren’t. My colleague Dr. Skop is an OB-hospitalist who has treated many women harmed by abortions. This week she wrote of her experience:
“One young woman bled daily for two months after obtaining these drugs because of retained dead pregnancy tissue in her uterus, which required surgical removal…Other women have lost large amounts of blood quickly, requiring fluid resuscitation and occasionally a blood transfusion. Many are emotionally shaken. They have been reassured that abortion drugs are “safer than Tylenol or penicillin” and are surprised when they bleed heavily for an average of two weeks, experience severe pain like that suffered in labor, and often see the child — which is clearly identifiable as human — they have chosen to abort.
“I expect to continue to see women with complications because of these inappropriate and cavalier decisions by the FDA. The FDA’s actions have and will continue to cause women’s crises to become much worse. Underestimation of gestational age because of failure to accurately date the pregnancy by ultrasound will lead to higher failure rates, often requiring emergency surgery.”
The data say they aren’t. Since 2016, the FDA has not actively collected abortion drug complications data for anything except death, and few states collect this information. BUT the Lozier Institute reviewed the six states that do gather this information and found that from 2020-2022, six states reported 1,004 complications, compared to just 17 reported by the FDA during the same timeframe. Imagine multiplying this by 50 states over 25 years and you paint a vastly different picture than the FDA’s claims that few women are harmed.
The New York Times recently reported that one sixth of all abortions in the United States are now mail-order, and we know that over 60% of all abortions are done using these dangerous drugs. This week I spoke with NBC about lawbreaking abortionists who ship drugs into our pro-life states at their legal peril, and unfortunately it looks like the blurred-out doctor took my recommendation to get counsel because NBC has pulled the story. We heard the FDA’s lawyer argue in the 5th Circuit that their rules don’t require a video visit, and we are increasingly seeing these drugs purchased by email and on social media, without any meaningful medical screening, and by men, minors and abusers. I encourage you to watch Catherine Herring tell her story HERE to see the reality of easy access to abortion drugs – an ex-husband who tried to poison her and her child SEVEN different times.
We expect a decision from the Supreme Court in June. Potential outcomes are:
If the Court upholds the 5th Circuit’s decision entirely, the original safety standards would take effect pending the outcome of the merits case.
If the Court upholds the 5th Circuit on standing but does not enjoin (block) the current FDA rules, AHM will return to the district court for the next phase of the case but the current Biden administration rules will be in effect.
If the Court overrules the 5th Circuit on standing, the case goes back to the district court – where three states have joined the case, arguing their own harms – and the Biden administration rules remain in effect.
Roe v. Wade is gone. But Big Abortion has struck back with an epidemic of abortion drug use —silent, seductive, and more dangerous than any other form of abortion.
As a pro-life American, you need to learn the surprising facts that will save lives and defeat this chemical devastation.
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