3 Takeaways From the Supreme Court Arguments on Abortion Pill Access
Justices on both ends of the political spectrum asked questions appearing to indicate they’ll rule in favor of the FDA and its expansion of access to mifepristone.
Medical groups who oppose abortion allege the FDA did not act lawfully when it eased rules tied to the drug in 2016 and 2021. The agency argues it did, and its supporters contend a ruling otherwise would result in a ripple effect of challenges for other FDA-approved drugs.
During Tuesday’s arguments, justices on both ends of the political spectrum asked questions that seemed to indicate they would rule in favor of the FDA. It’s the most significant abortion case to come before the Supreme Court since justices’ decision two years ago to overturn Roe v. Wade.
Mifepristone is a drug that blocks a certain hormone needed for a pregnancy to continue, according to the FDA. When used together with another drug, misoprostol, the FDA says it can be used to end a pregnancy through 10 weeks.
A decision on the case is expected over the summer. Here are three big takeaways from Tuesday’s oral arguments:
A ‘Standing’ Question
The federal government argued on Tuesday that the anti-abortion doctors who are suing in the case do not have the legal right to do so.
“We are looking at the specific respondents in this case and their theories of standing,” Solicitor General Elizabeth Prelogar, representing the government, told the Supreme Court. “We don't think they come within a hundred miles of the kind of circumstances this court has previously identified of nonspeculative harm that can create the kind of cognizable injury for forward-looking relief.”
Specifically, Prelogar said the doctors don’t prescribe mifepristone and are not required to treat women who take the drug. So “they stand at a far distance from the upstream regulatory action they're challenging,” she said.
But Justice Samuel Alito, part of the court’s 6-3 conservative majority, pressed Prelogar, asking who actually can sue the agency.
"Is there anybody who can sue and get a judicial ruling on whether what FDA did was lawful? And maybe what they did was perfectly lawful. But shouldn’t somebody be able to challenge that in court?" he said.
If the Supreme Court decides the plaintiffs don’t have standing to sue the FDA, it could dismiss the case outright.
Conscience Protections Considered
Conservative Justices Brett Kavanaugh and Amy Coney Barrett each asked questions about conscience protections, which allow health care providers to refuse to perform services because of religious or moral beliefs.
“Just to confirm on the standing issue: Under federal law, no doctors can be forced against their consciences to perform or assist in an abortion, correct?” Kavanaugh asked Prelogar.
“Yes, we think that federal conscience protections provide broad coverage here," the solicitor general said.
Following up on queries from Justice Elena Kagan, Barrett also raised a question about whether doctors involved in the case had ever had to participate in an abortion.
“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,” Barrett said. “And I don't read either … to say that they ever participated in that.”
Probing the Proposed Remedy
Chief Justice John Roberts and Justice Neil Gorsuch, also considered part of the court’s conservative wing, pressed the plaintiffs on why access to the abortion pill needs to be curbed broadly instead of the plaintiffs receiving a more tailored remedy.
“Why can't the court specify that this relief runs to precisely the parties before the court as opposed to looking to the agency in general and saying, ‘Agency, you can't do this anywhere?’” Roberts asked the plaintiffs’ attorney, Erin Hawley of the nonprofit Alliance Defending Freedom.
Gorsuch told Hawley the plaintiffs’ case “seems like 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.”
Hawley argued that tailored relief or relying on a conscience objection could be “impracticable.”
“If we're thinking again about the emergency room situation, would Dr. Francis, again, have to know when she's in the emergency room whether this is a miscarriage, an ectopic pregnancy or an elective abortion? This is what she does day in and day out,” Hawley said, referring to one of the doctors suing the FDA.
On the other side, Prelogar argued that the proposed remedy “would severely disrupt the federal system for developing and approving drugs, harming the agency and the pharmaceutical industry,” adding that it would also “inflict grave harm on women across the nation.”
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