reproductive health

scotus-rejects-challenge-to-abortion-pill-for-lack-of-standing

SCOTUS rejects challenge to abortion pill for lack of standing

Abortion, mifepristone, miscarriage, reproductive health, Science, SCOTUS, Supreme Court / /

“Near miss” —

The anti-abortion defendants are not injured by the FDA’s actions on mifepristone.

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Mifepristone (Mifeprex) and misoprostol, the two drugs used in a medication abortion, are seen at the Women's Reproductive Clinic, which provides legal medication abortion services, in Santa Teresa, New Mexico, on June 17, 2022.

Enlarge / Mifepristone (Mifeprex) and misoprostol, the two drugs used in a medication abortion, are seen at the Women’s Reproductive Clinic, which provides legal medication abortion services, in Santa Teresa, New Mexico, on June 17, 2022.

The US Supreme Court on Thursday struck down a case that threatened to remove or at least restrict access to mifepristone, a pill approved by the Food and Drug Administration for medication abortions and used in miscarriage care. The drug has been used for decades, racking up a remarkably good safety record in that time. It is currently used in the majority of abortions in the US.

The high court found that the anti-abortion medical groups that legally challenged the FDA’s decision to approve the drug in 2000 and then ease usage restrictions in 2016 and 2021 simply lacked standing to challenge any of those decisions. That is, the groups failed to demonstrate that they were harmed by the FDA’s decision and therefore had no grounds to legally challenge the government agency’s actions. The ruling tracks closely with comments and questions the justices raised during oral arguments in March.

“Plaintiffs are pro-life, oppose elective abortion, and have sincere legal, moral, ideological, and policy objections to mifepristone being prescribed and used by others,” the Supreme Court noted in its opinion, which included the emphasis on “by others.” The court summarized that the groups offered “complicated causation theories to connect FDA’s actions to the plaintiffs’ alleged injuries in fact,” and the court found that “none of these theories suffices” to prove harm.

Weak arguments

The anti-abortion medical groups, led by the Alliance for Hippocratic Medicine, argued that the FDA’s relaxation of mifepristone regulations could cause “downstream conscience injuries” to doctors who are forced to treat patients who may suffer (rare) complications from the drug. But the court noted that there are already strong federal conscience laws in place that protect doctors who refuse to participate in abortion care. Further, the doctors failed to provide any examples of being forced to provide care against their conscience.

The plaintiffs further claimed “downstream economic injuries” by way of having to divert resources from other patients and services. But the court flatly knocked down this argument, too, noting that the argument is “too speculative, lacks support in the record, and is otherwise too attenuated to establish standing.” Further, the organizations claimed that the FDA’s actions “caused” them to conduct studies and “forced” them to engage in advocacy and outreach efforts. “But an organization that has not suffered a concrete injury caused by a defendant’s action cannot spend its way into standing simply by expending money to gather information and advocate against the defendant’s action,” the Supreme Court ruled.

In a response to the ruling, reproductive health rights group National Institute for Reproductive Health blasted the lower courts’ actions that brought the case to the Supreme Court and described it as a warning. “This case should never have made it to the Supreme Court in the first place,” Haydee Morales, interim president of NIRH, said in a statement. “Anti-abortion operatives brought this case with one goal in mind—to ban medication abortion and they failed. This case was a near miss for the science and medicine community and it won’t be the last attack.”

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Frozen embryos are “children,” according to Alabama’s Supreme Court

Alabama, Alabama Supreme Court, art, embryos, fertlized egg, IVF, reproductive health, Science / /

frozen cell balls —

IVF often produces more embryos than are needed or used.

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January 17, 2024, Berlin: In the cell laboratory at the Fertility Center Berlin, an electron microscope is used to fertilize an egg cell.

Enlarge / January 17, 2024, Berlin: In the cell laboratory at the Fertility Center Berlin, an electron microscope is used to fertilize an egg cell.

The Alabama Supreme Court on Friday ruled that frozen embryos are “children,” entitled to full personhood rights, and anyone who destroys them could be liable in a wrongful death case.

The first-of-its-kind ruling throws into question the future use of assisted reproductive technology (ART) involving in vitro fertilization for patients in Alabama—and beyond. For this technology, people who want children but face challenges to conceiving can create embryos in clinical settings, which may or may not go on to be implanted in a uterus.

In the Alabama case, a hospital patient wandered through an unlocked door, removed frozen, preserved embryos from subzero storage and, suffering an ice burn, dropped the embryos, destroying them. Affected IVF patients filed wrongful-death lawsuits against the IVF clinic under the state’s Wrongful Death of a Minor Act. The case was initially dismissed in a lower court, which ruled the embryos did not meet the definition of a child. But the Alabama Supreme Court ruled that “it applies to all children, born and unborn, without limitation.” In a concurring opinion, Chief Justice Tom Parker cited his religious beliefs and quoted the Bible to support the stance.

“Human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself,” Parker wrote. “Even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.”

In 2020, the US Department of Health and Human Services estimated that there were over 600,000 embryos frozen in storage around the country, a significant percentage of which will likely never result in a live birth.

The process of IVF generally goes like this: First, egg production is overstimulated with hormone treatments. Then, doctors harvest the eggs as well as sperm. The number of eggs harvested can vary, but doctors sometimes try to retrieve as many as possible, ranging from a handful to several dozen, depending on fertility factors. The harvested eggs are fertilized in a clinic, sometimes by combining them with sperm in an incubator or by the more delicate process of directly injecting sperm into a mature egg (intracytoplasmic sperm injection). Any resulting fertilized eggs may then go through additional preparations, including “assisted hatching,” which prepares the embryo’s membrane for attaching to the lining of the uterus, or genetic screening to ensure the embryo is healthy and viable.

Feared reality

This process sometimes yields several embryos, which is typically considered good because each round of IVF can have significant failure rates. According to national ART data collected by the Centers for Disease Control and Prevention, the percentage of egg retrievals that fail to result in a live birth ranges from 46 percent to 91 percent, depending on the patient’s age. The percentage of fertilized egg or embryo transfers that fail to result in a live birth ranges from 51 percent to 76 percent, depending on age. Many patients go through multiple rounds of egg retrievals and embryo transfers.

The whole IVF process often creates numerous embryos but leads to far fewer live births. In 2021, nearly 240,000 patients in the US had over 400,000 ART cycles, resulting in 97,000 live-born infants, according to the CDC.

People who have extra embryos from IVF can currently choose what to do with them, including freezing them for more cycles or future conception attempts, donating them to others wanting to conceive, donating them to research, or having them discarded.

But, if, as Alabama’s Supreme Court ruled, embryos are considered “children,” this could mean that any embryos that are destroyed or discarded in the process of IVF or afterward could be the subject of wrongful death lawsuits. The ruling creates potentially paralyzing liability for ART clinics and patients who use them. Doctors may choose to only attempt creating embryos one at a time to avoid liability attached to creating extras, or they may decline to provide IVF altogether to avoid liability when embryos do not survive the process. This could exacerbate the already financially draining and emotionally exhausting process of IVF, potentially putting it entirely out of reach for those who want to use the technology and putting clinics out of business.

Barbara Collura, CEO of RESOLVE: The National Infertility Association, told USA Today that the ruling would likely halt most IVF work in Alabama. “This is exactly what we have been fearful of and worried about where it was heading,” Collura said. “We are extremely concerned that this is now going to happen in other states.”

But the hypothetical risks don’t end there. Health advocates worry that the idea of personhood for an embryonic ball of a few cells could extend to pregnancy outcomes, such as miscarriages or the use of contraceptives.

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Tens of thousands of pregnancies from rape occurring in abortion-ban states

Abortion, abortion ban, health, pregnancy, rape, reproductive health, Science, texas / /

Outraging —

States with bans logged 10 or fewer legal abortions per month, despite rape exceptions.

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Pro-choice protesters march in Texas, carrying signs that say

Enlarge / Pro-choice protesters march outside the Texas State Capitol on Sept. 1, 2021, in Austin, Texas.

Getty Images | The Washington Post

Fourteen states have banned abortions at any gestational age since the Supreme Court overruled Roe v. Wade in 2022. Since the enactment of those abortion bans, an estimated 64,565 people became pregnant as a result of rape in those states. But, while five of the 14 states have exceptions for rape, all of the states logged only 10 or fewer legal abortions per month since their respective bans were enacted.

The finding, published this week in JAMA Internal Medicine, is a stark look at the effects of such bans on reproductive health care. The study did not assess how many of the estimated 64,565 pregnancies resulted in births, but it makes clear that tens of thousands of pregnant rape survivors, including children, were forced to turn to illegal procedures, self-managed abortions, or burdensome travel to states where abortion is legal—cost-prohibitive to many—as an alternative to carrying a rape-related pregnancy to term.

It also showed that legal exceptions for rape don’t work. The states with those exceptions apply stringent time limits on the pregnancy and require victims to report their rapes to law enforcement, which likely disqualifies most. The US Department of Justice estimates that only 21 percent of victims report their rape to police, for myriad reasons.

In an editor’s note accompanying the study, a trio of JAMA Internal Medicine editors—who are also medical researchers at the University of California, San Francisco, Harvard, and NYC Health and Hospitals—note the findings “demonstrate the scope of the problem,” as the number of rape-related pregnancies is “exponentially larger” than the number of legal abortions in those states.

“As physicians, we do not see abortion as a political, religious, or legal issue. Rather we see access to safe abortions as a necessary part of reproductive health services to protect the physical and mental well-being of patients. The best solution to this problem is a national law protecting the right of all people to choose to terminate pregnancy,” they write.

Study design

The study, led by a researcher at Planned Parenthood of Montana, is only an estimate because hard, state-level numbers are impossible to come by. The researchers pulled rape data from the DOJ’s Bureau of Justice Statistics, the FBI, and the Centers for Disease Control and Prevention’s National Intimate Partner and Sexual Violence survey, a specially designed survey to ascertain reported and unreported rapes.

With national data from various sources, the researchers estimated the proportion of rape survivors that are female individuals ages 15 to 45, and they further adjusted for the number of rapes that are vaginal. To estimate state-level rapes, they proportioned the rapes by states based on the FBI’s 2022 crime data, which includes rapes. They then multiplied each state’s rapes by the fraction of rapes likely to result in pregnancy. And finally, adjusted for the months between July 1, 2022 and January 1, 2024 that an abortion ban was in effect in each of the 14 states. Among the 14 states, the number of months in which a ban was in effect ranged from four to 18 months.

In all, the researchers estimated 519,981 completed vaginal rapes in the 14 abortion ban states which resulted in a collective total of 64,565 pregnancies during the four to 18 months that bans were in effect. Of the rape-related pregnancies, an estimated 5,586 (9 percent) were in states with rape exceptions, and 58,979 (91 percent) were in states with no exception.

Texas, the abortion-ban state with the largest population, had an estimated 26,313 (41 percent) of all rape-related pregnancies under its ban, which was enacted for 16 months during the study time frame. The state’s large number drew outrage from Democratic state lawmakers, particularly in light Gov. Greg Abbott’s vow to “eliminate rape” in Texas after a 2021 six-week abortion ban took effect (the state enacted a total ban in August 2022).

“Women and girls across our state are enduring unwanted pregnancies, suffering from life-endangering complications in desired pregnancies and fleeing the state for medical care,” the 13 Democratic state senators said in a Thursday news release, as reported by the Houston Chronicle. “We cannot allow this to be the new norm.”

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