A majority of the Supreme Court appeared poised on Tuesday to reject an attempt to drastically limit access to abortion pills.
During about 90 minutes of argument, most of the justices seemed doubtful that the plaintiffs, who do not prescribe abortion pills or routinely treat abortion patients, even had standing to bring the challenge. The justices, including several in the conservative majority, questioned whether the plaintiffs could prove they suffered the moral harm they claimed they suffered from the availability of the pill, mifepristone.
The case centers on whether changes made by the Food and Drug Administration in 2016 and 2021 that expanded access to the drug should be overturned.
These changes have allowed patients to receive prescriptions for mifepristone via telemedicine and receive abortion pills by mail, which has greatly increased the availability of medical abortion.
Several judges questioned the solution the plaintiffs are seeking: to apply national restrictions on the drug in a case that would have far-reaching implications because it would be the first time a court would second-guess FDA experts’ judgment about safety of narcotics.
“This case seems like a prime example of turning a small lawsuit into a national legislative convention over an FDA rule or any other federal government action,” said Judge Neil Gorchos, an appointee of President Donald J. Trump.
Here are some conclusions:
The plaintiffs’ claims that they have standing to sue have been met with great skepticism.
To have standing, plaintiffs must show that they suffer specific harm from the policy or action they challenge in court. In that case, the plaintiffs, a group of doctors and anti-abortion groups, say they face moral harm because patients who take abortion pills may seek treatment later in emergency rooms at hospitals where some of those doctors work.
Solicitor General Elizabeth B. Prelogar, supporting the government, said the plaintiffs did not “come within 100 miles of the kinds of circumstances that this court has previously identified” as grounds to stand. He cited the fact that doctors do not prescribe abortion pills and are not forced to treat women who take abortion pills. More crucially, he pointed out that because serious complications from abortion pills are so rare, these doctors didn’t often encounter a woman who had experienced a serious complication that required treatment.
The plaintiffs’ attorney, Erin Hawley, countered that doctors had treated patients with abortion pills in emergency rooms. He mentioned the written statements in the case of Dr. Christina Francis and Dr. Ingrid Skop.
Judge Amy Coney Barrett questioned whether these doctors had given examples of “actually engaging in abortion to end the life of the embryo or fetus.” He added, “I don’t read either Skop or Francis to say they were ever involved in this.”
The justices also questioned whether the anti-abortion groups in the case have standing. These organizations claim they are harmed because in order to challenge the abortion pill, they have had to divert resources from other advocacy efforts.
Justice Clarence Thomas seemed skeptical of that claim, saying that having to prioritize how an organization spends its time and money would apply to “anyone who is aggressive or vigilant about bringing lawsuits. By simply using resources to support their position in court, you now say, injury is caused. It seems easy to build.”
There was a lot of talk about protecting conscience.
Federal conscience protections allow doctors and other health care providers to opt out of providing care they object to on moral or religious grounds. In many hospitals, doctors record their conscientious objections in advance, so they are never asked to participate in the care they object to.
Lawyers for the government and a mifepristone maker, Danco Laboratories, said that if anti-abortion doctors encountered a patient who had an abortion, they could easily invoke conscience protections and pass the case on to another doctor who had no moral objections. The plaintiffs are “people who do not use this product, do not prescribe this product, and have a conscience right not to treat anyone who has taken this product,” said Jessica Ellsworth, an attorney representing Danco.
Ms Hawley said there were sometimes cases in emergency departments where claimants did not have time to opt out, forcing them to “choose between helping a woman with a life-threatening condition and violating their conscience”.
Justice Ketanji Brown Jackson said there was a “mismatch” between what anti-abortion doctors claim to have experienced and the treatment they seek. “The obvious common sense solution would be to provide them with an exemption, that they don’t have to participate in this process,” Judge Jackson said.
Noting that such a remedy already exists in the form of conscience protection, he said: “So I guess what they’re asking for in this lawsuit is more than that. They say, “Because we oppose being forced to participate in this process, we are seeking an injunction preventing anyone from having access to these drugs. “
Judge Barrett asked about the plaintiffs’ claim that the Emergency Medical Care and Labor Act, or EMTALA, which requires hospital emergency departments to treat patients with medical emergencies, would override doctors’ conscientious objections and it forced them to treat patients who had abortion pills anyway. Ms. Prelogar said that won’t happen because EMTALA applies to hospitals, not individual doctors, so doctors with ethical objections can opt out.
The case could affect the government’s role in regulating drugs — and potentially regulating anything.
Many regulatory policy experts and drug industry leaders said that if the court decided to undermine the FDA’s scientific expertise, it would prevent companies from developing new drugs and ultimately harm patients who would not have those drugs available. They say it could also shake up the regulator of other government agencies.
Several judges asked about this issue. “Do you have concerns about judges analyzing medical and scientific studies?” Judge Jackson asked Ms. Ellsworth, the manufacturer’s attorney. Ms. Ellsworth said that was troubling, noting that two studies cited by the plaintiffs to show that mifepristone was unsafe had recently been retracted.
“That’s why the FDA has many hundreds of pages of analysis on file of the scientific data they showed,” Ms. Ellsworth said. “And the courts are not in a position to analyze it and second-guess it.
A 19th century anti-mischief law made its appearance.
The Comstock Act, enacted in 1873, prohibits the shipment of drugs that can be used to terminate pregnancy.
Justices Alito and Thomas questioned whether the act, which has not been used for decades and has been curtailed by the courts and Congress, is as valid as the plaintiffs claim.
“Comstock’s provisions are not within the FDA’s lane,” said Ms. Prelogar, who said the FDA’s responsibility was to determine the safety and effectiveness of drugs and to regulate them. He also noted that the Justice Department has issued an opinion that the Comstock Act only applies if the sender intended the recipient of the materials to “use them unlawfully.”
Ms Ellsworth warned of what could happen if the court decides to enforce the act. “I think this court should think a lot about the harm it would cause if it allowed agencies to begin acting on statutory responsibilities that Congress has assigned to other agencies,” he said.
