Abstract

PIP: On July 1, 1992, the case of Benten v. Kessler was filed in the US District Court in New York. The case arose out of an attempt by abortion rights activist Lawrence Lader to call public attention to the US Food and Drug Administration's (FDA) ban on importation of the abortifacient drug mifepristone known as RU-486. The ban expresses the anti abortion stance of the Reagan and Bush administrations and creates a hostile climate for the development of new drugs related to reproductive health and reproductive choice. Plaintiffs in the Benten case sought public accountability by the FDA for its adoption of a ban of a safe and effective drug for unwanted pregnancy. Although the case did not succeed in retrieving the confiscated RU-486 pills for Leona Benten, in its opinion issued on July 14, 1992, the New York district court judge concluded that the import ban did not appear to be based on concern with the safety or effectiveness of RU-486, describing the FDA's process of adopting the import ban as a sink of illegality. On July 17, 1992, 7 Justices of the Supreme Court, with justices Blackmun and Stevens dissenting, joined in a per curiam opinion denying the application and foreclosing further personal relief for Leona Benten. This was the best result possible short of an all out victory for Leona Benten. The Court ruled against plaintiffs in their argument that notice and comment were required, but left entirely open plaintiffs' claims that the import ban is arbitrary and capricious under the Administrative Procedure Act and that the ban is unconstitutional in that it unduly burdens the right to terminate pregnancy. This backdrop creates a healthy skepticism about the prospects for the introduction of RU-486 into the US in the near future as well as about the fairness of government processes in areas of concern to women. Public health considerations, not politics, should determine access to health care.