Supreme Court sounds unlikely to limit medication abortion access

WASHINGTON — The Supreme Court appeared skeptical of a lower court ruling that would restrict access to medication abortion Tuesday, during oral arguments in two cases challenging the Food and Drug Administration regulation of the drug mifepristone.

Most of the justices aired concerns about the U.S. Court of Appeals for the 5th Circuit decision in a challenge to the FDA’s loosening of prescribing rules in 2016 and 2021 by anti-abortion medical groups and four physicians.

And some key justices, including some conservatives on the court, focused on whether the case should be in court at all or why the moral objections of a handful of doctors should lead to a court ruling that would limit access in all 50 states.

The justices are set to decide the case before the conclusion of the Supreme Court term at the end of June, in the middle of the election season where abortion access has emerged as a key campaign issue.

The challengers, in a lawsuit brought by conservative legal group Alliance Defending Freedom, contend the new regulations would lead to them being forced to provide abortions over their conscientious objections to the practice.

The 5th Circuit overturned the FDA decisions that allowed non-doctors to prescribe the medication, reduced the dose, reduced in-person visitation rules, reporting requirements and allowed the drug to be sent through the mail.

Three justices on the conservative majority who were appointed by President Donald Trump aired concerns with the scope of that ruling.

Justice Neil M. Gorsuch questioned the 5th Circuit’s use of a nationwide injunction against the FDA to address the objections raised by the doctors.

Gorsuch said there have been a “rash” of sweeping court orders in recent years and said this case may be “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.”

And Justices Brett M. Kavanaugh and Amy Coney Barrett pointed out that the challengers were still protected by federal law that allows them to not participate in an abortion.

The attorney for the challengers, Erin M. Hawley, responded that the doctors could not rely on a narrower order that would give them conscience protection or some other exemption.

“Given the emergency nature it’s simply impractical to have an objection lodged prior to understanding what’s going on in that operating room,” Hawley said.

Justice Elena Kagan pointed out that hospitals typically handle conscience objections outside of emergency situations so that a doctor would not be assigned to that case in the first place.

Hawley, the wife of Sen. Josh Hawley, R-Mo., responded that system may not always work, and a doctor could have to decide between violating their conscience or wasting “precious moments scrubbing in and scrubbing out” in an emergency.