Lawsuit aims to remove abortion pills from market in light of Dobbs decision oveturning Roe

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FDA clears abortion pill to be sold at pharmacies

Fox News medical contributor Dr. Nicole Saphier on mifepristone-induced abortions and new clearance that would allow the drug to be sold at pharmacies.

A pro-life medical group is suing the Food and Drug Administration to overturn its 20-year-old approval of abortion drug mifepristone – just months after the Supreme Court overturned Roe v. Wade.

The Alliance for Hippocratic Medicine (AHP) initially filed the suit in Texas last November arguing the drug was improperly fast-tracked in 2000 by categorizing pregnancy as "an illness."

Now, legal experts are at odds over whether a law from the 1800s will come into play given the Biden administration's decision to allow the drug to continue to be shipped via email, as some believe the case can be headed all the way to the Supreme Court.

"They really did fast-track the approval of mifepristone," Sarah Parshall Perry, senior legal fellow at the Heritage Foundation, told Fox News Digital.

"And that is the most concerning factual basis here was that they didn't follow the approved science and they pushed this through an approval process without performing the type of testing and the type of data analysis required for these types of emergency approvals," Perry said.

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Since the June 2022 ruling that overturned Roe v. Wade, states across the country have moved to push a number of abortion legislation, including total abortion bans or more expansive abortion access. 

Recently, the GOP has taken steps to prevent President Biden from declaring a federal health emergency as a means of expanding abortion rights - a move the Biden administration has been inching toward since Roe was overturned.

Boxes of the drug mifepristone sit on a shelf at the West Alabama Women's Center in Tuscaloosa, Alabama., on March 16, 2022. A Texas lawsuit seeks to vacate the Food and Drug Administration's approval of the drug.  (AP Photo/Allen G. Breed, File)

Erwin Chemerinsky, dean of the UC Berkeley School of Law, believes that the case could ultimately make its way up to the U.S. Supreme Court no matter who the court sides with.

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"I think that the plaintiffs have a very weak basis for challenging the law," Chemerinsky told Fox News Digital. "But they have filed the case to get in front of a very conservative, likely sympathetic judge."

A point of contention could prove to be the Justice Department's approval for the U.S. Postal Service to continue delivering mifepristone via mail, with experts arguing that the DOJ violated the Comstock Act of 1873. The Comstock Act "makes shipment between states and interstate commerce of any article designed for abortion to be illegal," according to Parshall Perry.

Plaintiffs in Alliance for Hippocratic Medicine versus the FDA argue that the FDA improperly fast-tracked mifepristone's approval in 2000.  (iStock)

"It's definitely going to play in as a factor because the FDA ought to have had the knowledge that these particular instruments could not be shipped over state lines," Parshall Perry said. "So again, the fast-track approval in 2000 makes everyone sit up and take notice because this was an agency that knew full well what the law was."

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Chemerinsky, on the other hand, does not see the Comstock Act playing such a significant role in the case when it goes to trial, saying the court will instead look to "whether the FDA followed proper procedures in approving the drug."

Critics say the Department of Justice violated federal law in approving the U.S. Postal Service to continue distributing mifepristone via mail. (Kent Nishimura / Los Angeles Times via Getty Images)

The FDA said it will not comment on pending litigation when asked for comment. 

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"We and the many parties who are supporting the national medical associations and doctors hope the court will agree the FDA never had the authority to approve these dangerous drugs and reject the marketing and distribution of them," Alliance Defending Freedom Senior Counsel Erik Baptist in a statement.

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The AHP filed a brief Feb. 10 in support of their motion for a preliminary injunction.