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Americans concerned about the safety, health, and welfare of women and girls in this country received welcome news last week. The U.S. Court of Appeals for the Fifth Circuit has upheld a lower court decision requiring the Food and Drug Administration (FDA) to reinstate crucial safeguards for chemical abortion drugs. The FDA's initial approval of the drugs mifepristone and misoprostol is fraught with bad science and shady politics, and the courts are finally calling the FDA to account for its wrongs.
In 2000, the FDA unlawfully approved the sale of chemical abortion drugs, and for years physicians with several medical associations petitioned the FDA to withdraw its unscientific approval because of the real medical harm women experienced (and still experience) after taking these drugs. The FDA completely ignored their petition. Then, at the height of the COVID-19 pandemic, the agency continued to erode public health and safety by removing important safeguards and making the drugs even less safe to take.
I know what opposing corners of this debate will say. They will claim the courts are playing politics or disregarding the purported expertise of the FDA. But, in fact, the U.S. Constitution entrusts to our courts the responsibility of holding federal agencies accountable for failing to comply with the law. And it was the FDA that played politics when approving chemical abortion drugs to the detriment of women and girls. The courts are simply reminding the FDA to do its job and follow the law.
America was founded on simple principles, one of them being the rule of law. In my role as senior counsel for Alliance Defending Freedom, I see our clients dealing—on the front lines—with the fallout of the FDA's illegal approval of these dangerous drugs. Women have arrived at hospitals in severe pain, hemorrhaging uncontrollably, left alone with remains in their bodies that require surgical intervention. By favoring abortion extremists and approving the drugs, the FDA is unnecessarily subjecting women to the risk of life-threatening emergencies.
We also expect government officials to uphold the right of liberty and justice for all. But, once again, the FDA has instead curried favor with the abortion lobby by removing vital safeguards on chemical abortion drugs.
In 2016, the FDA expanded the approved use of the drugs from seven weeks of pregnancy to 10 weeks. It changed the dosing regimen, reduced the number of required in-person doctor visits from three to one, and expanded who could prescribe the drugs. With these dangerous actions, the FDA then eliminated the requirement for prescribers to report non-fatal complications caused by the drugs, allowing countless injured women to slip through the cracks while the FDA touted how "safe" chemical abortion drugs supposedly are.
Then, in 2021, the FDA said that women could get the drugs through telemedicine and the mail, essentially placing a potential medical emergency a phone call away. Throughout the whole traumatizing experience of inducing labor and delivering their aborted babies, women didn't have to physically see a doctor even once—not prior to the abortion to screen for dangerous ectopic pregnancies and not afterwards to identify any life-threatening complications. Where is the justice in removing requirements that help ensure women get proper medical treatment from an abortion gone wrong?
And that's where the Fifth Circuit's decision comes in. The court required the FDA to do its job and restore crucial safeguards for women and girls, including ending illegal mail-order abortions. The FDA is finally being held accountable for the damage it has done—for inflicting harm on so many women and girls who have fallen victim to its dangerous partisan decisions and for delaying the justice so many physicians and women have been demanding since the drug first hit the market.
The FDA ignored science in favor of politics, and so far, women have paid a steep price. The Fifth Circuit's decision opens the door to ensuring that the FDA is held accountable for its reckless behavior. This is a significant victory not only for the doctors and medical associations we represent but also the health and safety of women and girls.
Erik Baptist, senior counsel with Alliance Defending Freedom (@ADFLegal), represents four doctors and four medical associations in Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration.
The views expressed in this article are the writer's own.
