Standing Ovation: SCOTUS Gets It Right on Mifepristone

Mifepristone. Photo by Yuchacz. Creative Commons Attribution-Share Alike 4.0 International license.
Mifepristone. Photo by Yuchacz. Creative Commons Attribution-Share Alike 4.0 International license.

On June 13, the US Supreme Court rejected a challenge to the Food and Drug Administration’s approval (in 2000) of mifepristone, aka RU-486, aka “the abortion pill.”

The court ruled unanimously, but on an issue of standing rather than on the facts. The case was brought by a group of doctors who oppose abortion and do not themselves prescribe mifepristone for that use . “[A] plaintiff ’s desire to make a drug less available for others does not establish standing to sue,” Associate Justice Brett Kavanaugh noted in the court’s opinion.

The facts, however, are also important.

“If we had a war on abortion in this country,” Libertarian presidential candidate Harry Browne told CNN two months before FDA approved mifepristone,  “within five years, men would be having abortions.”

Taking Harry’s “slippery slope” argument at face value for its time — he died in 2006 and is thus unavailable for comment on current kerfuffles over gender identity — it’s a fair riff on the title of his 1996 campaign book: Why Government Doesn’t Work. The war on drugs hasn’t “worked.” The war on poverty hasn’t “worked.”

Men? Maybe not … but women who choose to abort a pregnancy have enjoyed ways of doing so since time immemorial, government edicts to the contrary notwithstanding.

I don’t have to like that choice. You don’t have to like that choice. Women have that choice whether we like it or not, even if we go to courts or politicians to try to take it from them.

Harry didn’t like that choice — he was “pro-life” and morally opposed to abortion — but wisely opposed government involvement in it. In fact, he opposed the very existence of the FDA (as do I), preferring to leave drug development, testing, and sales to the private sector.

It’s unlikely that banning mifepristone would prevent so much as a single abortion. It would just push women toward other methods — methods more likely to result in their own deaths in addition to the deaths of the fetuses involved. Fortunately, mifepristone would still be available on the black market, but that would become just another game of roulette — is it the real thing or just a fake pill?

Banning mifepristone would also make it less available to for management of symptoms related to early miscarriage, as well as for patients with Cushing’s syndrome, uterine fibroids, endometriosis, and psychotic depression, all of which it’s used to treat.

I’m well aware of the moral arguments against abortion. I don’t make a habit of sharing my moral position on that issue.

I will, however, share my moral position on how to handle the issue in the moment. That moral position is to support women making difficult decisions, and to limit any argument over those decisions to gentle, understanding persuasion.

Legislation has never ended, and never will end, abortion. Even totalitarian regimes like that of Romania’s Nicolae Ceauaescu have historically proven incapable of eliminating it. And trying to do it that way leads us toward such totalitarian outcomes.

Whatever their reasons, SCOTUS got this one right.

Thomas L. Knapp (Twitter:@thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism ( He lives and works in north central Florida.