HIGH COURT SEEMS LIKELY TO PRESERVE ACCESS TO ABORTION MED MIFEPRISTONE
WASHINGTON — The Supreme Court on Tuesday seemed likely to preserve access to a medication that was used in nearly two-thirds of all abortions in the U.S. last year, in the court’s first abortion case since conservative justices overturned Roe v. Wade two years ago.
In nearly 90 minutes of arguments, a consensus appeared to emerge that the abortion opponents who challenged the FDA’s approval of the medication, mifepristone, and subsequent actions to ease access to it, lack the legal right or standing to sue.
Such a decision would leave in place the current rules that allow patients to receive the drug through the mail, without any need for an inperson visit with a doctor, and to take the medication to induce an abortion through 10 weeks of pregnancy. Should the court take the no-standing route, it would avoid the more politically sensitive aspects of the case.
The high court’s return to the abortion thicket is taking place in a political and regulatory landscape that was reshaped by its abortion decision in 2022 that led many Republican-led states to ban or severely
restrict abortion.
Solicitor General Elizabeth Prelogar, the Biden administration’s top Supreme Court lawyer, said the court should dismiss the case and
make clear that anti-abortion doctors and organizations don’t “come within 100 miles” of having standing.
Even three justices who were in the majority to overturn Roe posed
skeptical questions about standing to the lawyer for the abortion opponents. Justices Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh are former President Donald Trump’s three Supreme Court appointees.
Barrett, for example, seemed to doubt that two doctors identified by lawyer Erin Hawley could show that they were actually harmed by the FDA’s actions, one of the requirements for showing standing.
“I think the difficulty here is that, at least to me, these affidavits do read more like the conscience objection is strictly to actually participating in the abortion to end the life of the embryo or fetus. And I don’t read either ... to say that they ever participated in that,” Barrett said.
Kavanaugh had only one question during the entire session and it too seemed to be focused on the technical issue of standing. He asked Prelogar to confirm that “under federal law, no doctors can be forced against their consciences to perform or assist in an abortion.”
Abortion opponents are asking the justices to ratify a ruling from a conservative federal appeals court that would limit access to mifepristone, one of two drugs used in medication abortions.
That ruling had immediate political consequences, and the outcome in the current case, expected by early summer, could affect races for Congress and the White House.