A US Federal District Appeals Court based in New Orleans, Louisiana USA has made a determination that the abortion pill Mifesperone (Mifepristone) will remain accessible but not by mail. The Justice Department (DOJ) and Biden Administration are throwing a temper tantrum over the decision and will regurgitate all their same arguments at the US Supreme Court.
The US Judicial System can not legislate. It is a violation of the US Constitution. Namely, Article 1 Section 1.
There are other arguments such as Separation of Powers which is a complex legal theorem to some but can be explained fairly clearly and succinctly using constitutional documents. Some of which do require translation such as from Latin to English, German to English, Roman to English, French to English, German to English and other languages including Spanish and languages resembling the Spanish tongue to English. They all say the same thing so the "theorem" is essentially non debatable but an excellent legal practice in establishing constitutionally compliant laws.
Abortion is one of the topics that ends up at the US Supreme Court a lot. For requests that the Supreme Court Legislate legal abortion access. It can not do that. It can only determine that a certain right, behaviour, cultural attitude (right and behaviour) is covered by ex post facto law and is thoroughly documented in legislative documents.
From the Article published by NBC News on the Microsoft News Publishing Platform there are several facts that are important to abortionists some of which show obsessive and compulsive behaviours as is the case with many topics a crowd can be passionate about without knowing too much about en force legislation or valid court procedures.
The courts in the USA often entertain matters without a valid court procedure in order to generate documentation that due process was not intentionally violated.
However, the courts can not legislate in the USA.
The key facts of the article which was written by 2 authors is as follows:
- Mifesperone will remain accessible
- Ordering Mifesperone by mail will vary by State
- Misoprostol works more effectively in conjunction with (tandem) Mifesperone
- FDA originally approved the Mifesperone (Mifepristone) in 2000.
- In 2016 FDA modified approved use by:
- Reducing visits required from 3 to 1 prior to prescription approval
- Increasing maximum weeks pregnant for drug approval from 7 to 10 weeks
- Made other changes not mentioned in the article ("among other things", focus is 2 items)
- In 2021 FDA approved drug for ship to patient via mail
- In 2019 FDA approved a generic version of Mifesperone made by GenBioPro
- Most abortions are completed via administration of pill in the USA (Majority)
- Mention of Comstock Act 1873
- The appeals court in New Orleans had a 3 Judge panel
- The US Supreme Court "overturned" Roe vs Wade by 5 to 4 last year
- Judge Haynes stated she would have blocked the ruling in full (not clear on what grounds)
- Ruling applies to Washington DC and 17 states that filed the lawsuit
- Unamed US District Judge from Washington State ordered the FDA not to alter the status quo
- US District Judge Thomas Rice ordered FDA not to comply with order from 5th Circuit Court
- The 5th District order is restrictions on prescription by mail.
- US District Judge Matthew Kacsmaryk suspended the FDA approval from 2000
- The US Appeals Court reversed him but kept in place the restriction on prescription by mail
There are various issues to discuss regarding abortion from the Article. 1 issue not mentioned is that California has added the right to an abortion to the California Constitution. As this right is not listed as a Crime in US Code Title 18 and there are various laws throughout the United States allowing abortion in addition to international approval of abortion processes; the right is very likely to stand the test of time and be covered by Ex Post Facto law by the US Constitution. This would apply to California and not necessarily to Arizona, Nevada, Oregon or any other State.
Another issue is that abortion is generally allowed in cases of rape, incest or birth defect. The issue with birth defect is genocide and false reports of birth defects can result in administration of regulatory penalties and possible trial for unlawful combat for any doctors involved in issuing false reports of birth defects leading to abortion decisions that subsequently resulted in genocide, extinction or extermination of the targeted group or people through non reproduction caused by psychological manipulation. These trials are normally held by a military tribunal.
In Roe vs. Wade, the viability line was set at over 24 weeks or past 6 months. Today it is 10 weeks. What doctors find ethical and conscionable to them. Before the heart starts beating or after birth via gas or injection where allowed. Like with Darwin who lacked access to the electron microscope or to the fully decoded human genome; doctors in 1973 lacked access to various technologies, imageries and studies on pain, life and medical ethics that resulted in them feeling comfortable with terminating a life in utero at up to 7 months into development. The longterm health of the mothers uterus, reproductive system and stomach organisms (biological structures) form part of modern doctors decisions on ethical and humane abortion practices.
The wide availability of contraceptives and birth control as well as sex education for prepubescent teens and teens already going through puberty has also led to these doctor decisions in the USA. Since 1995, its simple and economical to not get pregnant so the only issue is often emergency contraceptives taken by the female after unprotected sex which are fairly new, available over the counter and used pre pregnancy as a precaution if not on birth control and not using a condom.
This leaves a few issues at questions and one of those has to do with Separation of Powers.
The FDA is an Executive Branch Authority on medicines, they work with DEA and NIH. DEA does some administrative oversight with the attorney general regarding drug experimentation and FDA lets DEA know if something has gone wrong with approved medicine supplies in the USA or if one of their experiments resulted in results that resembled use of illicit street drugs or if mixing and combining certain approved medicines resulted in undesired side effects. NIH does mostly lab work but FDA has their own labs.
As an Executive Branch Authority, FDA must comply with Article 1 Section 1 of the US Constitution. It can not legislate. However, Congress has allowed the FDA research that falls within legislative guidelines for human experimentation, medicines and pharmaceutical drugs to stand as a final determination for safe use of drugs available through US Medical Professionals and Pharmacies.
This is because FDA is an expert, its expertise can be challenged through peer review and Congress can make certain drugs legal or illegal through codification in the US Code; however as FDA is the expert if its findings remain unchallenged there is usually very little reason for Congress to make the findings of their studies illegal. Constitutional Compliance, Due Process and Court Procedure are key terms for their drug approval process.
As the courts also can not legislate, they can not necessarily invalidate an FDA drug approval process. They would have to petition Congress to make a certain drug illegal. A Judge is allowed to read medical journals for instance and request that Congress address their concerns.
The Comstock Act is generally seen as a law respecting an establishment of religion. Often due to the word Lasciviousness which is not a word commonly used outside of religious circles. Today; sex toys, contraceptives, pornography and medicines can all be shipped via mail. An issue was that a religious person delivering vulgarity would violate their religious oath of purity and righteousness. Today, a reasonable accommodation can be given to not deliver items from certain shippers that a postal worker may be uncomfortable handling and packages can be sorted into various routes in some areas.
An issue with the generics is two fold. One is that the FDA approved that the generic is safe for use and meets requirements for intended purpose. The other issue is a Commerce issue, namely US Constitution Article 1 Section 8 Clause 8 and whether the initial manufacturer had enough time to recoup R&D costs and if they will be receiving licensing fees from the generics distributor.
With regard to mailing medicines, the issue is usually drug theft and receiving medicines or medical devices from foreign countries with a US prescription. The drugs or medical devices have to be approved for use in the USA by the FDA and the importer (if a foreign country) must have a license and business agreement to import and distribute within the USA. Non FDA approved drugs are almost always illegal to ship via mail. Some people refer to vitamins and home remedies such as herbal teas as drugs and that is an important distinction to notate.
In order for abortion to have a nationwide standard of access, the same legislation must exist in approximately 35 states before it can be legislated into the US Code. Article 1 Section 7 Clause 2 and 3 with Article 4 Section 2 Clause 1. Essentially if a law is present in 2/3 of the States, the Congressional Representatives of those states should issue a yes vote as to the enactment of that law in the US Code and the privileges and immunities of the several states shall be the privileges and immunities of each state. An immunity is a right such as immunity from prosecution and a privilege can be a law or legislation such as the legislation that allows purchasing of condoms, alcohol and hotel rooms for personal enjoyment. The legislation that allows equal access to setting up a business and using it for income. Some articles can be both a privilege and a right depending on context for example women driving in Saudi Arabia is a privilege but a woman driving in the USA is a right; freedom of movement and right to travel.
The main issues to consider is on having 2/3 of the states enact similar legislation and to discuss with the State Legislators what the rules are on receiving medicine via ship to home and from what approved providers. Many states are pro family planning meaning if you are not planning on having a baby and do not have the resources to pay their way through adulthood, you should not be getting pregnant. Abortions are rare in these states even if people occasionally still require them and that is a different issue than being denied an abortion after being raped in the street, park bench or alley by a drunkard or violent predator and being forced to carry their offspring to term. The issue is not much different when being raped by an acquaintance, co-worker or business partner.
When considering medical defects in family planning oriented states, blood tests can often be done prior to insemination which is a standard procedure already being done for in vitro, egg donor, sperm donor, surrogate mother or artificial insemination. Its not much different than an STD test or general blood work. The tests are done and the doctors go through scenarios about possible birth defects, gene mutations, gene deletions and potential gene expression. The interested family then talks about costs, risks, analysis and treatment for potential birth defects or behavioural problems prior to discontinuing use of contraceptives for the purpose of attempting a pregnancy.
In these family planning oriented states; a broken condom, missed pill, dislocated diaphragm will often result in an emergency contraceptive or consultation for an abortion pill. This is often due to lack of resources for a child at the moment and while it falls outside the guidelines of rape, incest or birth defect it is usually allowed to prevent undue suffering for the child and the pill is often requested and administered with verification of success and undue harm to the mother before the heart starts beating. This keeps the womb in prime condition if she later decides she does want a child and to reduce complications if she later decides she would prefer to have her reproductive system removed due to her sexual preference and desires.
Within this realm of abortion, family law, women's health, family planning and child wellbeing; the issues regarding abortion access are minimal and should be addressed through the state legislators until 35 states have similar abortion access standards at which point those standards can be brought to Congress for legislation (or codification) into the US Code. Most reasonably Title 42.
Data provided by Laurence Hurley and Laura Jarrett at NBC News.
https://www.msn.com/en-us/news/other/appeals-court-partially-blocks-ruling-that-imperils-access-to-key-abortion-pill/ar-AA19NKbr