US Supreme Court Case on Abortion Pill: Professors’ Critical Analysis of Reproductive Rights

Microjuris interviewed Patricia Otón Olivieri, professor at the Faculty of Law of the Universidad Interamericana and Yanira Reyes Gil, professor at the faculty of law at the Universidad Interamericana, who provided a critical view of the key implications that the case before the federal Supreme Court related to the challenge the abortion pill could have on reproductive rights.

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By Daniel Rivera Vargas

Two teachers evaluated the implications of the new case before the United States Supreme Court (SCOTUS, in English) related to abortion, on this occasion a challenge to the abortion pill.

Last week it emerged that the high forum will decide on access to the abortion pill, Mifepristone, one of the two drugs used in pharmacological abortions in the United States.

Federal Supreme Court will decide on access to the abortion pill

The controversy revolves around the approval of the drug by the Food and Drug Administration (FDA), existing for decades. The matter was challenged in the federal courts of Texas.

The oral argument will be held at the beginning of 2024 and the decision of the Federal Supreme Court will be made before June 30.

For Patricia Otón Olivieri, associate professor of the law school of the Interamerican University and the Graduate School of Public Health, Medical Sciences Campus, University of Puerto Rico (UPR) He maintained that what the court rules could have an effect on access to a medicine approved more than 20 years ago.

“It is an effective medicine and we have to see how far we want to go in the restrictions so that people decide about their bodies and that it affects only one sector of the population, which is pregnant people,” said the professor.

He added that the decision would also affect the FDA, because the reaction that the federal agency may have is not so automatic.

«Why then does the Food and Drug Administration agency exist, which is in charge of evaluating the effects and scope of medicines? The issue of approving medications is not so easy and simple, it is problematic when the courts have to be resolving these medical issues,” he commented.

Otón Olivieri added that there are even states that are stocking up on the medicine to try to have sufficient supplies of it in the face of an adverse outcome against the medicine by the Federal Supreme Court.

The former secretary of the Supreme Court of Puerto Rico highlighted that the case is a consequence derived from the case Dobbs v. Jackson Women’s Health Organization, that ended the federal right to abortion.

“Again, they are restrictions on the bodies of pregnant people, women, who do not affect anyone else in the population, are looking for other ways to restrict abortion, there is no interest in the health of lives and women,” he said. .

From elsewhere, Yanira Reyes Gil, professor at the law school of the Interamerican Universityinitially highlighted that the case is poorly decided both in the Court of Appeals for the Fifth Circuit because the groups that question do not have active legitimation, or “standing.”

According to the professor, these are doctors who do not provide services related to abortions, but rather a medical association that is mostly emergency physicians and gynecologists who allege, under a minuscule possibility, that if a pregnant person or a woman had a adverse reaction they will be forced to care for that person regardless of whether they do not support abortion.

«It is not a problem with the medication, it is with the abortion. It is an additional attempt to restrict abortion, to prevent a drug used without major repercussions for women since its approval in 2000, which has had thousands of tests and studies on this, they are very solid, and show that it is a very safe and that the percentage of people who have an adverse reaction is less than 1%,” said the constitutionalist.

He explained that these people decide to act after the FDA relaxed the regulations for this drug to allow more people to prescribe it or require medical visits for that. He commented that in some states in the United States people such as nurses can prescribe.

Reyes Gil contextualized that after the revocation of Roe v. Wade, and the ban in many states on the right to abortion, defenders of this right understood that one possibility for pregnant people in those states was to obtain medications by mail or at a pharmacy and these anti-pill groups want to prevent this.

In addition, he indicated that something important to mention is that the pill is not only used for selective abortions, but for women who are going through unprovoked abortions, this medication can help them complete the process without the risks that a surgical intervention represents. .

When asked if the pill’s time was numbered, given the record of this United States Supreme Court, which has issued numerous conservative decisions – not only on abortion but in favor of prayer in schools, of restricting the Agency Environmental Protection Agency (EPA) and prohibit certain gun regulations from states, Reyes Gil answered that “It is a difficult question to answer” and explained that the high forum is facing a particular situation in this case.

On the one hand, the professor maintained that a curious element of this resource is that it is an attempt to get the United States Supreme Court to issue a ban at the federal level related to abortion when in Dobbs they said that the states are the ones that should take the decision. decision.

«It is a contradiction. If Dobbs said that abortion is not something that should be addressed at the federal level and that it should be addressed at the state level, they will be careful to address a case at the national level,” said Reyes Gil.

On the other hand, there is the issue of standing, explained the professor. It turns out that the high federal forum has been strict in granting active legitimation to associations, such as the group that is handling this case. This could open a door until now closed to environmental associations to complain about ecological controversies, which the Supreme Court has traditionally avoided granting them access to that forum.

Finally, in this case there is a very strong interest group that is affected: pharmaceutical companies. “Replacing the expert judgment of the FDA with that of the court is very dangerous… that puts the pharmaceutical industry in check,” said Reyes Gil. “A blow to the FDA can have a great impact on the pharmaceutical industry, which is an interest group with a lot of power.”

“It is important that we take into account that this is yet another strategy of anti-rights groups to deny rights to women and pregnant people and that it would have a direct impact on Puerto Rico because, as we know, the FDA guidelines apply to Puerto Rico.”

«This goes beyond a medical interest. All the scientific and medical evidence on the safety of this medication contrasts with the speculation of this association that is simply trying to sneak in another ban for religious and moral reasons, not for medical reasons. And this is very dangerous, that they want to replace medical and scientific criteria with political, moral and religious criteria,” said Reyes Gil.

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