The US Supreme Court on Tuesday heard arguments in a case seeking to limit access to the abortion and miscarriage drug mifepristone, with a majority of justices expressing skepticism that the anti-abortion groups that brought the case have the legal standing to do so.
The case threatens to dramatically alter access to a drug that has been safely used for decades and, according to the Guttmacher Institute, was used in 63 percent of abortions documented in the health care system in 2023. But, it also has sweeping implications for the Food and Drug Administration's authority over drugs, marking the first time that courts have second-guessed the agency's expert scientific analysis and moved to restrict access to an FDA-approved drug.
As such, the case has rattled health experts, reproductive health care advocates, the FDA, and the pharmaceutical industry alike. But, based on the line of questioning in today's oral arguments, they have reason to breathe a sigh of relief.
Standing
The case was initially filed in 2022 by a group of anti-abortion organizations led by the Alliance for Hippocratic Medicine. They collectively claimed that the FDA's approval of mifepristone in 2000 was unlawful, as were FDA actions in 2016 and 2021 that eased access to the drug, allowing for it to be prescribed via telemedicine and dispensed through the mail. The anti-abortion groups justified bringing the lawsuit by claiming that the doctors in their ranks are harmed by the FDA's actions because they are forced to treat girls and women seeking emergency medical care after taking mifepristone and experiencing complications.
AdvertisementThe FDA and numerous medical organizations have emphatically noted that mifepristone is extremely safe and the complications the lawsuit references are exceedingly rare. Serious side effects occur in less than 1 percent of patients, and major adverse events, including infection, blood loss, or hospitalization, occur in less than 0.3 percent, according to the American College of Obstetricians and Gynecologists. Deaths are almost non-existent.
Still, a conservative federal judge in Texas sided with the anti-abortion groups last year, revoking the FDA's 2000 approval. A conservative panel of judges for the Court of Appeals for the 5th Circuit in New Orleans then partially overturned the ruling, undoing the lower court's ruling on the 2000 approval, allowing the FDA's approval to stand, but still finding the FDA's 2016 and 2021 actions unlawful. The ruling was frozen until the Supreme Court weighed in.
Today, many of the Supreme Court Justices went back to the very beginning: the claimed scenario that the plaintiff doctors have been or will imminently be harmed by the FDA's actions. At the outset of the hearings, Solicitor General Elizabeth Prelogar argued that the plaintiffs had not been harmed, and, even if they were, they already had federal protections and recourse. Any doctor who consciously objects to caring for a patient who has had an abortion already has federal protections that prevent them from being forced to provide that care, Prelogar argued. As such, hospitals have legal obligations and have set up contingency and staffing plans to prevent violating those doctors' federal conscious objection protections.
“Conscious objection”
Justice Brett Kavanaugh highlighted the point in one of his few questions during the oral arguments today, asking: "Just to confirm on the standing issue, under federal law, no doctors can be forced against their consciences to perform or assist in an abortion, correct?" Prelogar confirmed that there are already broad protections in place.
In terms of direct evidence that the plaintiff doctors' have had those federal protections violated, Justice Elena Kagan said she found no such thing in the legal documents and doctors' affidavits filed in the case. Kagan put this to this Erin Hawley, the lawyer representing the anti-abortion groups. "You need a person," Kagan said, "so, who's your person?" Hawley named two anti-abortion doctors she claimed were directly harmed, Christina Francis and Ingrid Skop. But Kagan disagreed, saying there were no examples in their affidavits of them being forced to provide care over their objections. "There's just nothing that you have there... At the very least, to be able to say, 'Well, this happened to them in the past.' I don't think you have it for either one of those doctors," she said.
Justice Amy Coney Barrett chimed in a little after that to echo Kagan's point. She noted that to have their conscious objection violated, they would have to have been forced to be directly involved in an abortion, but the affidavits don't indicate that they ever were. "The difficulty here is that, at least to me, these affidavits do read more like the conscious objection is strictly to actually participating in the abortion to end the life of the embryo or fetus, and I don't read either Skop or Francis to say that they ever participated in that," Barrett said.
AdvertisementJustices Ketanji Brown Jackson and Neil Gorsuch, meanwhile, pushed on a broader point with Hawley that the doctor's conscious objections claims—which could be resolved with something as simple as an exemption—don't match the suggested remedy—overruling the FDA and limiting drug access for the entire country. "Assuming we have a world in which [the doctors] can actually lodge the objections that you say that they have, my question is, isn't that enough to remedy their issue?" Jackson asked. "Do we have to also entertain your argument that no one else in the world or no one else in America should have this drug in order to protect your clients?"
Hawley began to repeat an argument that the "emergency nature" of the care prevents doctors from voicing their objections. At that point, Gorsuch interrupted Hawley to reinforce Jackson's point. "We have before us a handful of individuals who have asserted a conscious objection ... this case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule or other federal government action," Gorsuch said.
Likely dissenters
While the issue of standing drew skepticism from many of the justices, Justice Samuel Alito and Clarence Thomas both seemed focused on the Comstock Act of 1873, a law that bans mailing "obscene materials" and hasn't been enforced for nearly a hundred years. Conservatives have interpreted the law as banning the mailing of abortion medications, such as mifepristone, while the federal government has argued that it is obsolete.
"This is a prominent provision," Alito argued Tuesday. "It’s not some obscure subsection of a complicated, obscure law. Everybody in this field knew about it."
