Too Late: Why Most Abortion Pill Administrative Procedure Challenges Are Untimely

Abstract

In their Article, Abortion Pills, Professor David Cohen, Professor Greer Donley, and Dean Rachel Rebouché argue that abortion pills are here to stay. But Alliance for Hippocratic Medicine v. FDA (AHM), now under consideration at the Supreme Court, threatens to upend the availability of abortion pills. In AHM, doctor plaintiffs raise administrative procedure challenges to the FDA’s regulation of mifepristone over more than two decades. The government may win AHM on standing. But another law also deserves attention -- the six-year statute of limitations at 28 U.S.C. § 2401(a). This statute time-bars challenges to the FDA’s 2000 approval of mifepristone and the FDA’s 2016 changes to prescription and distribution rules. The limitations period, though a traditionally conservative ideal, here protects the relatively progressive legal status quo of reproductive rights described in Abortion Pills.

Keywords: abortion pills, mifepristone, 28 U.S.C. 2401(a), statute of limitations, limitations, time bar

JEL Classification: K23, K32