Roberts court and judicial limitations 

Americans concerned about the U.S. Supreme Court’s views on abortion may have been confused on Thursday when the court issued a unanimous ruling that maintained access to the abortion drug mifepristone. After all, this is the same court that overturned Roe v. Wade, the landmark 1973 ruling that blocked states from banning abortion in the early months of pregnancy.

Any confusion stems from a misunderstanding of the question. In both cases, the Supreme Court wasn’t deciding the nation’s policy on abortion. It was deciding where the question is decided, and who decides.

Mifepristone was approved by the FDA in 2000 and initially regulated very strictly. The FDA required three in-person doctor visits to receive the drug, not later than the seventh week of pregnancy. In 2016, the FDA allowed the use of mifepristone to terminate pregnancies up to 10 weeks and required only one in-person visit to receive the drug. In 2021, the agency said it would stop enforcing the in-person visit requirement.

In the case before the Supreme Court, Food and Drug Administration v. Alliance for Hippocratic Medicine, four pro-life medical associations were challenging the FDA’s relaxed regulations. The federal district court had agreed with the associations and effectively ordered mifepristone off the market. The Fifth Circuit Court of Appeals allowed some of the plaintiffs’ claims to go forward. The Supreme Court agreed to decide whether that was a correct ruling.

On Thursday, the  justices said unanimously that it was not. The plaintiff medical associations, Justice Brett Kavanaugh wrote for the court, “say that they are pro-life, oppose elective abortion, and have sincere legal, moral, ideological and policy objections to mifepristone being prescribed and used by others.” However, because they “do not prescribe or use mifepristone,” and “the FDA has not required the plaintiffs to do anything or refrain from doing anything,” they are “unregulated parties who seek to challenge FDA’s regulation of others.”

Kavanaugh put “others” in italics. Twice.

The court held that the plaintiffs do not have “standing” to sue the FDA over the regulations. The consistent point of the Roberts court’s rulings on abortion is that judicial power is limited, and courts are not the place where policy choices for the nation should be made.