In addition to a presidential election that promises to test the borders of American democracy — again — the year 2024 will go down as the year that the U.S. Supreme Court could decide to place its own judgement of medical concerns above the decisions of the agency tasked with ensuring that the drugs on the market are safe for human consumption.
On Dec. 13, the Supreme Court announced that it would take up the case involving the availability of the abortion pill, mifepristone, after a judge in Texas, and later a panel of judges for the U.S. Court of Appeals, ruled that the drug shouldn't be available via telemedicine or through the mail, and shouldn't be available as late in pregnancy as it currently is.
Last week, Sen. Ron Wyden (D-OR)) sounded the alarm about something that should concern all of us: If the Supreme Court's pending ruling is in line with the rulings of those lower courts, it could set a dangerous precedent — essentially, that the courts know better than the medical and scientific experts who dedicate their lives to ensuring drugs are safe before they go to market.
"In effect, after years and years of saying the agency charged with safety questions, the Food and Drug Administration, reached the conclusion that it is a safe and effective drug," Wyden said during a press conference at Planned Parenthood of the Columbia-Willamette. "But a bunch of judges said 'no, we're going to put our judgement in place of the FDA in spite of the fact that we are not experts.' You would throw open the doors to politicizing what ought to be good science and safety," Wyden said.
So what does this mean for Oregonians? In a state where our right to abortion is now enshrined in the state Constitution, it could be easy for us to sit back and think we're good to go. After all, Oregon Gov. Tina Kotek, after hearing in April that the ruling by that Texas judge could put Oregonians' access to medication abortion in jeopardy, moved to stockpile three years' worth of mifepristone. Further, Kotek announced she would "refuse non-fugitive extradition of individuals for criminal prosecution for receiving legal reproductive healthcare services in Oregon," making Oregon a safe haven for those seeking safe and legal abortions.
Still, should the Supreme Court rule in favor of the anti-abortion plaintiffs in the case, it could make access harder, even in safe havens like Oregon. Pregnant people may have to once again attend multiple doctor visits to get the drug. They may no longer be able to talk with their health care provider over the phone or video chat to gain access — a common practice for rural people who live far from a clinic.
Stripping the FDA of its authority to approve medications just to make abortions less accessible would be a ridiculous overreach even for this Supreme Court — but we as voters need to stay vigilant. The Supreme Court is expected to rule on this case before it ends its season in June — which puts us right in the middle of what will certainly be a heated election season. Could an adverse ruling that restricts the use of mifepristone galvanize voters and get them to come to the ballot box in favor of expanding or preserving access to reproductive rights? Well, if the last two years have been any indication, the answer is yes. So far, every state that has brought the issue of abortion rights directly to voters has seen abortion rights protected.
We're not willing to say that we'd prefer an adverse ruling just to get pro-choice voters to show up at the ballot box, but it's at least a little bit of solace. Voters, often in opposition to the people in power in their various states, want to preserve the right to a safe and legal abortion.
If you think it's ironic that the people who, by effectively repealing Roe v. Wade in 2022, said the issue was up to the states are the same people now calling for a federal ruling that results in a blanket restriction of mifepristone over all the U.S., you wouldn't be alone. But if you are OK with the Supreme Court ruling on the safety of a drug and superseding the ruling of the FDA, wait 'til they come for your Viagra.
