Rachel Rebouché on "Facts on Trial: Alliance for Hippocratic Medicine v. FDA and the Battle over Mailed Medication Abortion"

Rachel Rebouché has published "Facts on Trial: Alliance for Hippocratic Medicine v. FDA and the Battle over Mailed Medication Abortion" in Volume 95 of the Colorado Law Review. The article concludes: 

The Alliance for Hippocratic Medicine litigation is a striking example of how evidence can be marshaled by a court to undermine a federal agency. But abortion advocates also have used evidence in contemporary cases to undermine agency decision-making. FDA v. American College of Obstetricians and Gynecologists, a 2020 case, similarly involved a challenge to the FDA’s mifepristone regulations. The district court suspended the FDA’s in-person dispensation restriction for the duration of the COVID-19 pandemic and because of the absence of safety justifications for the rule. It did not defer to the agency (which had a different position on the matter under the Trump Administration), and abortion advocates counted this as a victory for evidence. On appeal, however, the Supreme Court deferred to the FDA and supported the use of agency expertise to retain then-existing mifepristone restrictions.

 

This example matters because it tests the assumptions that evidence is apolitical, neutral, or settled; that evidence is separate from law; and that healthcare policy will be better if based only on evidence and not on politics, as if the two could be untangled. Neither side of the abortion debate should bank on having facts—or courts—to advance their agendas. Instead, as the uptake of mailed medication pills shows, what matters is real-time abortion access through telehealth and through organizations like Aid Access, which ship medication abortion to every state in the country. That is not to argue that all facts and evidence are equal; the Alliance litigation makes that point clear. But what that litigation also makes clear is that some courts may not care or may not believe that the evidence supports abortion’s safety. And rather than creating research agendas reactive to that reality, research needs to pioneer new pathways tethered to political and strategic goals. The last sentence is not a call for the dilution of evidentiary or scientific standards. Rather, this Essay offers an example of the contemporary will of some courts to undermine those standards and asks, what will abortion-supportive forces do about it?