Atlanta Injury Lawyer Blog
Today the United States Supreme Court is hearing oral arguments in Case No. 23-235 FOOD AND DRUG ADMINISTRATION V. ALLIANCE FOR HIPPOCRATIC MEDICINE, a case in which certain physicians have sued the FDA alleging permitting the use of Mifepristone violates their rights. Much of the oral argument focuses on “standing,” i.e., whether these physicians even have the right to bring such a case against the FDA. I am listening right now live to the the SCOTUS oral arguments and even the super Conservative Justices seem extremely skeptical about standing. Here are the questions presented before the Supreme Court today:
QUESTION PRESENTED:
This case concerns mifepristone, a drug that the U.S. Food and Drug Administration
(FDA) approved in 2000 as safe and effective for terminating early pregnancies. The Fifth Circuit
held that respondents-doctors and associations of doctors who oppose abortion-have Article III
standing to challenge FDA’s 2016 and 2021 actions with respect to mifepristone’s approved
conditions of use and that those actions were likely arbitrary and capricious. The court
therefore affirmed the district court’s stay of the relevant agency actions. The questions
presented are:
1. Whether respondents have Article III standing to challenge FDA’s 2016 and 2021
actions.
2. Whether FDA’s 2016 and 2021 actions were arbitrary and capricious.
3. Whether the district court properly granted preliminary relief.
You can listen to all oral arguments live on the SCOTUS website.
This necessarily raises the question of what would happen here in Georgia? You may recall my case involving the wrongful destruction of my client’s last two embryos, Moller v. Reproductive Biology Associates, currently pending in the Gwinnett County State Court. I recently blogged about this lawsuit. You may recall that in my case, Moller v. Reproductive Biology Associates, CIVIL ACTION FILE NO. 21-C-08075-S3, my clients’ two frozen embryos were destroyed by laboratory staff, even though my client was undergoing the extensive and intrusive year-long medical protocol to have the embryos transferred, which means placed in her uterus to become fetuses. On the very day my client called to schedule the medical procedure to have the embryos transferred (placed) into her uterus, she was told her embryos had actually been discarded. You can imagine the trauma this caused to my clients. These were their last two embryos.
On of the issues in the Reproductive Biology Associates case is whether an embryo is now considered an “unborn child” under the Georgia Life Act, which went into effect during the pendency of the case. I amended my Complaint to add two wrongful death claims for the wrongful destruction of the two embryos. Although the trial court granted a motion to dismiss the two wrongful death claims, whenever this case makes its way to Georgia appellate courts, I believe a strict construction of the statute will result in the courts’ finding that embryos are, in fact, “unborn children” under the Georgia definition.
Were the Georgia appellate courts to try to ascertain what the Georgia Attorney General’s position is on whether embryos are “unborn children” they would need look no further than the letter sent to Walgreen’s and CVS pharmacies by 20 Attorneys General giving notice to these pharmacies that if they sold the abortion medication Mifepristone, they would bring criminal charges against the pharmacies for using the Federal mail system to send patients abortion drugs via the mail. The letter stated: “We emphasize that it is our responsibility as State Attorneys General to uphold the law and protect the health, safety, and well-being of women and unborn children in our states,” the coalition wrote. “Part of that responsibility includes ensuring that companies like yours are fully informed of the law so that harm does not come to our citizens.” Attorney General Chris Carr was one of the 20 Attorneys General who signed these two warning letters.
According to the Food and Drug Administration (“FDA”), Mifepristone is a drug that blocks a hormone called progesterone that is needed for a pregnancy to continue. Mifepristone, when used together with another medicine called misoprostol, is used to end a pregnancy through ten weeks gestation (70 days or less since the first day of the last menstrual period). It is for medical termination of a pregnancy at any time from the first day after a woman discovers the pregnancy to 70 days afterward. The means from any time a pregnancy exists, from day one after fertilization or conception, up to 70 days after fertilization or conception. Mifepristone creates medical termination of a pregnancy that is less than six weeks after gestation, even as little as a few days after conception, depending on the woman’s last menstrual period. See https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/information-about-mifepristone-medical-termination-pregnancy-through-ten-weeks-gestation.
Because the “abortion pill” that is the subject of the letter is used for termination of pregnancy at any time after pregnancy is discovered, well before even six weeks of pregnancy, it shows that Georgia’s Chief Legal Officer takes the position that any fertilized egg, at any stage, deserves the protection of Georgia law and Federal law and would be considered an “unborn child” under the Georgia Life Act.
Who will be next? Will the Attorneys General next send warning letters to fertility clinics that any destruction of a frozen embryo would be considered the murder of an “unborn child?” It certainly seems that the Georgia Attorney General, the Chief Legal Officer for the State of Georgia, would, at a minimum, agree that a person whose frozen embryos were wrongfully destroyed by her fertility clinic should be able to pursue civil wrongful death actions for those embryos under Georgia Law.
Robin Frazer Clark is a trial lawyer who pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia, a Past President of Georgia Trial Lawyers Association, a Past President of the Lawyers Club of Atlanta and has practiced law in Georgia for 35 years. She is a member of the International Society of Barristers and of the American Board of Trial Advocates. She is a Fellow of the American College of Trial Lawyers. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and the Top 25 National Women Trial Lawyers and is a Georgia Super Lawyer. Ms. Clark is the co-host of the podcast “See You In Court,” sponsored by the Georgia Civil Justice Foundation. Ms. Clark has tried over 75 jury trials and argued in Georgia Appellate Courts over 45 times. She has practiced law in Georgia for 36 years.
Robin Frazer Clark ~ Dedicated to the Constitution’s Promise of Justice for All.
