Justices appear skeptical to curtail abortion pill access

A majority of the Supreme Court appeared skeptical Tuesday of efforts to severely curtail access to a widely used abortion pill, questioning whether a group of antiabortion doctors and organizations had a right to challenge the Food and Drug Administration's approval of the medication.

Over nearly two hours of argument, justices across the ideological spectrum seemed likely to side with the federal government, with only two justices, conservatives Samuel Alito and, possibly, Clarence Thomas, appearing to favor limits on distribution of the pill.

Describing the case as an effort by “a handful of individuals,” Justice Neil Gorsuch raised whether it would stand as “a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule or any other federal government action.”

The challenge involves mifepristone, a drug approved by the FDA more than two decades ago that is used in nearly two-thirds of abortions in the country. At issue is whether the agency acted appropriately in expanding access to the drug in 2016 and again in 2021 by allowing doctors to prescribe it through telemedicine and to send the pills by mail.

The Biden administration had asked the Supreme Court to intervene after a three-judge panel of a federal appeals court favored curbing distribution of the drug. Until the justices decide, access to mifepristone remains unchanged, delaying the potential for abrupt limits on its availability.

Even if the court preserves full access to mifepristone, the pills will remain illegal in more than a dozen states that have enacted near-total abortion bans. Those do not distinguish between medication and surgical abortion.

The case brought the issue of abortion access back to the Supreme Court, even as the conservative majority had said in the case that overturned Roe v. Wade, Dobbs v. Jackson Women's Health Organization, that it would cede the question “to the people and their elected representatives.”

Gorsuch's questioning was echoed by other justices, who asked whether any of the doctors involved in the lawsuit could show they were harmed by the federal government's approval and regulation of the abortion drug.

In one instance, Justice Elena Kagan asked the lawyer for the anti-abortion groups whom they were relying on to show an actual injury.

“You need a person,” Kagan said. “So who's your person?”

Although the argument contained detailed descriptions of abortion, including questions about placental tissue and bleeding, the focus on whether the challengers were even entitled to sue suggested that the justices could rule for the FDA without addressing the merits of the case.

Since the decision to overturn Roe v. Wade ended a nationwide right in place for nearly a halfcentury, abortion pills have increasingly become the center of political and legal fights.