fda under the fdca can only maintain restrictions under the rems program if it is necessary to ensure safe use. in 2021, what fda determined is you don't need in person dispensing for safe use, so the fdca did not independently require that rems restriction and couldn't be imposed once fda made that determination. that doesn't affect other sources of law. fda was not affirmatively approving, mailing in violation ofinterpreted it that way. but at the very least i don't think it was the fda's responsibility to consider that nor could they consider it under the statute. >> it didn't say anything about it. this is a prominent provision. not some obscure subsection of complicated obscure law. they knew about it. everybody in this field knew about it. shouldn't they have at least addressed it? you have answers to the arguments made on the other side. shouldn't the fda have at least said we have considered those and provide some kind of an explanation? >> let me give two responses. one is that i don't think it would have even been permissible for fda to consider maintaining this restriction

the fdca says you have to have -- >> didn't the lower courts go beyond that? representations were made that the lower courts relied on studies that have been found discredited and removed. so they were obviously look at not just what the fda was looking a t. >> that wasn't quite the right sound bite. that was jackson arguing why should the courts get into this. mark joseph stern, how did that go? >> very poorly for the anti abortion advocates here represented by erin hawley. she said we've proved time and again it poses a threat to women but as judge brown pointed out, it's a very safe drug. safer than viagra and tylenol. they sited these studies that purported to show it was actually dangerous and caused excessive bleeding but in between those decisions and today, those studies were retracted for being insufficiently rigorous and sponsored by abortion groups that had an ax to grind against abortion. i think when the justices did reach the merits, there was very little that erin could do here to persuade them that this pill is especially dangerous. it falls sq