Hint of skepticism in abortion pill case
Justices question group’s right to challenge FDA
waSHiNGtoN — a majority of the Supreme Court appeared deeply skeptical tuesday of efforts to severely curtail access to a widely used abortion pill, calling into question 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 the 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 twothirds 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.
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 bans do not distinguish between medical and surgical abortion.
the case brought the issue of abortion access back to the Supreme Court, even as the conservative majority had claimed it would cede the question “to the people and their elected representatives.”
Gorsuch’s pointed questioning was echoed by other justices, who asked whether any of the doctors involved in the lawsuit could show an actual injury from the federal government’s approval and regulation of the abortion drug.
in one instance, Justice Elena
kagan asked the lawyer for the antiabortion 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 half-century, abortion pills have increasingly become the center of political and legal fights.
in November 2022, a group of antiabortion doctors and medical organizations sued the FDa, asserting that the agency erred when it approved the drug in 2000.
a federal judge in texas, matthew kacsmaryk, had issued a preliminary ruling last spring invalidating the FDa’s approval of the drug. in august, a panel of federal appeals judges in New orleans limited his ruling, determining that mifepristone should remain legal but imposing significant restrictions on access. those focused on the FDa decisions about telemedicine and pills by mail.
a ruling for the antiabortion doctors could have implications for the regulatory authority of the FDa, potentially calling into question the agency’s ability to approve and distribute other drugs.
Solicitor General Elizabeth Prelogar, arguing for the government, warned of the farranging consequences, both for the pharmaceutical industry and for reproductive rights. “it harms the pharmaceutical industry, which is sounding alarm bells in this case and saying that this would destabilize the system for approving and regulating drugs,” she said. “and it harms women who need access to medication abortion under the conditions that FDa determined were safe and effective.”
to bring the legal challenge, antiabortion doctors and groups must show that they will suffer concrete harm if the pill remains widely available. lawyers call this requirement standing.
the argument zeroed in on declarations by seven antiabortion doctors in the lawsuit. they said they have suffered moral injuries from the availability of the abortion pill because they may be forced to treat women who come to emergency rooms suffering complications from the pill, including heavy bleeding. Prelogar asserted that claims by the antiabortion doctors and groups “rest on a long chain of remote contingencies,” with scientific studies showing that medical complications from abortion pills are very rare. She urged the justices to “put an end to this case.”