Justices appear skeptical of challenge to abortion medication
WASHINGTON — U.S. Supreme Court justices sounded skeptical Tuesday about imposing new limits on the dispensing of abortion medication through pharmacies or by mail.
The justices, both conservatives and liberals, questioned whether a group of anti-abortion doctors have legal standing to challenge the dispensing rules set by the federal Food and Drug Administration. That issue, not the safety of mifepristone, dominated a two-hour hearing — likely a sign of what the justices thought about the case.
“The court should put an end to this case,” Solicitor Gen. Elizabeth Prelogar said on behalf of the Biden administration Tuesday. A handful of doctors who oppose all abortions do not have the right to challenge the legal use of the medication by millions of women, she argued.
If the court were to uphold new restrictions on dispensing the pills, the impact would be felt by women in California and other blue states where abortion is legal. Conversely, a ruling that the anti-abortion doctors in this case lack the legal standing to sue could forestall other challenges.
A decision by the court is expected later this session, most likely toward the end of June, as it wraps up.
Abortion pills, typically a combination of mifepristone and a second drug, misoprostol, are now the most common method of ending a pregnancy in the U.S., used by 3 out of 5 abortion patients. Use of the drugs has grown significantly in the two years since the court’s Dobbs decision, which struck down the constitutional right to abortion.
During Tuesday’s hearing, only conservative Justice Samuel Alito directly disputed arguments that the anti-abortion claim should be thrown out.
“Isn’t there anyone who could challenge this?” he asked.
Conservative Justices Neil Gorsuch, Amy Coney Barrett and Brett Kavanaugh asked largely procedural questions.
Gorsuch questioned why a lawsuit brought in western Texas on behalf of a few anti-abortion doctors should lead to a nationwide injunction.
The case appears to be “a prime example of turning what could be a small lawsuit into a nationwide legislative assembly,” Gorsuch said.
Barrett said the law already offered “conscience protections” to shield doctors who have moral objections to abortions from being required to perform them. She said she saw no evidence that those protections were not being honored.
Kavanaugh asked for clarification: “Under federal law, no doctors can be forced against their consciences to perform or assist in an abortion, correct?”
Yes, Prelogar replied.
In 2022, Gorsuch, Kavanaugh and Barrett cast crucial votes in the court’s 5-4 decision to strike down the longtime constitutional right to abortion.
The challenge to the legality of abortion medication posed a test for the court’s anti-abortion conservatives. The opinion in the Dobbs case said the regulation of abortion should be decided by states and elected officials, not judges.
During Tuesday’s arguments, Gorsuch and Barrett in particular questioned why judges in Texas had taken on the role of regulating abortion medication.
The court’s liberal members similarly questioned the basis for the case.
Justice Ketanji Brown Jackson said she saw “a significant mismatch” between what the anti-abortion doctors complained about and the remedy they were seeking.
“They’re saying, ‘Because we we object to having to participate in this procedure, we’re seeking an order preventing anyone from having access to these drugs at all,’ ” she said.
The court heard from three attorneys Tuesday, all women.
Jessica Ellsworth represented Danco, which makes and distributes mifepristone. Agreeing with the solicitor general, she said the case demonstrates why judges should not “second-guess” the FDA on matters of drug safety.
She noted that U.S. District Judge Matthew Kacsmaryk in Amarillo, Texas, who issued an injunction against the FDA, “relied on one study that was an analysis of anonymous blog posts” and cited other studies that have “since been retracted for lack of scientific rigor and for misleading presentations of data.”
Erin Hawley, a lawyer for the conservative Christian group Alliance Defending Freedom, represented the anti-abortion doctors. She said the fact that some women will encounter side effects from the medication and seek treatment at emergency rooms means that some doctors who oppose abortion will be forced to choose between “helping a woman with a life-threatening condition and violating their conscience.”
But she spent most of her time fending off questions that challenged her clients’ standing to sue.
The FDA approved the use of mifepristone in 2000, saying it was safe and effective when taken in combination with misoprostol. In 2016 and 2021, the agency loosened restrictions on how the pills may be prescribed.
The changes eliminated the requirement for an in-person doctor visit before the pills could be prescribed. The FDA said that years of experience indicated that the in-person visits were not needed to ensure safety. That change opened the way for telemedicine prescriptions, which are now used by many women in states that ban abortions.
The pills cause cramping and some bleeding and can sometimes require a doctor’s intervention to complete the abortion. But the FDA says serious complications are “exceedingly rare,” noting that more than 5 million women in the U.S. have used the medication since 2000.
More than a dozen major medical groups, led by the American College of Obstetricians & Gynecologists and the
American Medical Association, said in friend-of-the court briefs that two decades of studies have shown the drugs are safe.
The frequency of their use has made the drugs a target for anti-abortion activists. Two years ago, shortly after the Dobbs ruling, a group of anti-abortion doctors filed the lawsuit in Amarillo.
They sought a court order that would overturn the FDA’S approval of the drugs. And they sought out a judge who would look favorably on their claim. Kacsmaryk, a Trump appointee who is the only federal judge based in Amarillo, “suspended” the FDA’S approval of mifepristone and gave the government seven days to appeal his decision.
The U.S. 5th Circuit Court of Appeals in New Orleans partially reversed Kacsmaryk’s ruling, deciding that it was too late to reverse the FDA’S approval of the drug, but agreeing to set aside the regulations the agency has adopted since 2016.
Biden administration lawyers appealed to the Supreme Court, and the justices voted to put the case on hold. Alito and fellow conservative Justice Clarence Thomas dissented from that initial decision.
The tenor of the court’s response to Tuesday’s arguments in FDA vs. Alliance for Hippocratic Medicine suggested that a majority of the justices will vote to reverse the 5th Circuit, with Thomas and Alito dissenting again.