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By Joe Ulery

Public News Service

December 19, 2023

As the United States Supreme Court decides whether the abortion pill is safe, some legal scholars predict the decision may backfire on anti-abortion advocates.

The case paving the way for the nation’s highest court to get involved does not focus on abortion access, but rather the U.S. Food and Drug Administration’s process to approve drugs.

The U.S. Court of Appeals for the 5th Circuit ruled last summer that mifepristone can stay on shelves where it is legal. However, the appeals court decided FDA changes making easier access to the drug failed to follow proper procedure.

Indiana University Maurer School of Law professor Jody Madeira isn’t surprised the high court picked up this case and predicts it might not have the result anti-abortion proponents expect.

“And I do think that it might end up, in a surprising way, protecting abortion rights,” Madeira said. “The Supreme Court has been sort of on a trend where it’s been narrowing agency rights. But here, the right the FDA has is to judge whether mifepristone is safe.”

Madeira posed this question: If courts start deciding drug safety, then what becomes the incentive for pharmaceutical companies to develop new drugs and treatments?

A final decision on mifepristone use is expected by the end of June 2024.

Another obstacle women and girls face is finding doctors comfortable with the ambiguity of new laws restricting abortion. In many cases, according to Madeira, patients cannot find care because doctors don’t want to risk losing their medical license.

State authorities will go to great lengths to persecute and prosecute doctors who even speak to the media about performing an abortion,” Madeira stressed. “Dr. Caitlin Bernard and our attorney general, Todd Rokita, is the perfect example. Certainly, doctors have a right to feel very wary and reluctant.”

Drug companies and the FDA say mifepristone is safe and has lower risks than such common drugs as Tylenol and Viagra.

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