Protecting women under fire in two court cases

By Dave Andrusko

In this post we will discuss two court cases. One brought by the ACLU against pro-life Tennessee legislation, the other a response by the Food and Drug Administration in which the FDA defending requirements intended to protect women who are taking chemical abortifacients.

With regard to the ACLU and Tennessee, here’s what our affiliate, Tennessee Right to Life, had to say. Under the headline “Abortion Profiteers Take TN to Court Again,” we read

Planned Parenthood Federation of America, ACLU, ACLU of Tennessee, the Center for Reproductive Rights and other for-profit abortion operators filed suit on Monday to overturn the #Prolife Abortion Pill Reversal Bill that the Tennessee Legislature passed in June.

The law, set to go into effect on October 1, would require abortion facilities to display signage informing women that a chemical (RU486) abortion may be reversed following the first dose of a two-pill protocol. It also requires a physician to directly provide the same information during informed consent, 48 hours prior to the abortion procedure.

The ACLU’s bottom line is the same boilerplate argument it continues to make about Abortion Reversal. According to Andrew Beck, “the law would require doctors to lie to patients and share misinformation that isn’t backed up by credible science.” This is a patent falsehood as we have discovered here, here, and here.

In a brief dated September 8, pro-abortion organizations and providers argued the order must remain in place. The FDA formally filed its reply brief with the Supreme Court on Thursday. 

As NRL News Today has reported, on July 14, Theodore Chuang of the U.S. District Court for the District of Maryland issued an injunction preventing the FDA from enforcing its requirement that “women go to doctor’s offices, clinics, or hospitals to pick up the drug mifepristone, also known as mifeprex, for the duration of the public health emergency caused by the novel coronavirus,” as Bloomberg Law described it. 

The FDA asked the court to stay an order that “requires the agency to allow women to get the drug by mail or delivery until the emergency ends.”

The brief, written by Jeffrey B. Wall, Acting Solicitor General,  is extremely thoughtful and on point throughout. Its opening paragraphs capture the core of the defense of the FDA’s requirements:

Since  2000,  the  Food  and  Drug  Administration  (FDA)  has  required and  repeatedly  reaffirmed  that  patients  may   obtain Mifeprex or its generic equivalent (collectively, Mifeprex) only at a hospital, clinic, or doctor’s office after being counseled  about  the  drug’s  risks in  terminating  an  early  pregnancy  (the safety  requirements).  Respondents  do  not  suggest that  these  longstanding  safety  requirements

in  and  of  themselves  have  the  purpose or effect of creating a substantial obstacle to abortion access.  Rather, they contend that because the COVID-19 pandemic 

has made going anywhere riskier or more difficult than in normal  times, the Constitution mandates their suspension so that patients  can obtain a medication-abortion drug by mail. 

That position contravenes this Court’s precedents. As this 

Court has made clear, the Constitution does not guarantee access to the abortion method of one’s choice where, as here, reasonable alternatives remain available.  Nor does it 

require the government to  remove  incidental  effects  on  abortion  access  caused  by  an  unforeseen  global  pandemic.    Because  the  nationwide  injunction  here  departs  from  those  principles  and  irreparably  harms  the government and the public, it warrants a stay.