A Supreme Court majority appeared deeply skeptical Tuesday of efforts to limit access to a widely used abortion pill, questioning whether a group of doctors and anti-abortion groups had standing to challenge the drug’s approval by the Food Service and Medicines. .
Only two justices, conservative Samuel A. Alito Jr. and Clarence Thomas, appeared to show some support for anti-abortion challengers.
Describing the case as an effort by “a handful of people,” Judge Neil M. Gorsuch asked whether it would constitute “a key example of turning a small lawsuit into a national legislative assembly for an FDA rule or any other federal government action.”
His heated question during nearly two hours of argument was echoed by other justices, who asked whether any of the doctors involved in the lawsuit could show actual injury from the federal government’s approval and regulation of mifepristone, a drug used almost in two thirds of abortions in the country.
At one point, Justice Elena Kagan asked the attorney the anti-abortion groups relied on to show an actual injury from the drug.
“You need one person,” Justice Kagan said. “So who’s your man?”
The case put the abortion issue before the court once again, less than two years after a conservative majority struck down the constitutional right to abortion and said it would cede the issue of access “to the people and their elected representatives.”
A ruling by the justices, expected in late June, could cut off telemedicine prescriptions and mail-order pills, two changes in recent years that have expanded distribution. It could also have implications for the Food and Drug Administration regulator, potentially calling into question the agency’s ability to approve and distribute other drugs.
The current challenge involves mifepristone, a drug approved by the FDA more than two decades ago. At issue is whether the agency acted appropriately to extend access to the drug in 2016 and again in 2021.
But much of the argument focused not on the FDA’s recent changes or the broader implications for the pharmaceutical industry, but on the doctors’ underlying anti-abortion statements and whether their claims were enough to bring the case to the fore.
To bring the legal challenge, doctors and anti-abortion groups must show that they will suffer specific harm if the pill remains widely available. Lawyers call this requirement permanent.
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Justice Ketanji Brown Jackson noted a mismatch between what anti-abortion doctors claimed to have experienced and the cure they seek, with Justice Neil M. Gorsuch later making a similar point. Doctors claim it offends their moral beliefs to care for patients who have taken abortion pills, but are asking the court to impose restrictions on the pill that would drastically limit its availability to all patients. Judge Jackson and Solicitor General Elizabeth B. Prelogar both noted that the plaintiffs’ objections could be met by a right they already have: federal conscience protections that allow them to opt out of providing care they morally object to.
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The case began in November 2022, when a group of anti-abortion doctors and medical organizations sued the FDA, arguing that the agency erred when it approved the drug in 2000. The coalition brought the challenge to Amarillo, a city in the Texas Panhandle where a only a federal judge heard all new civil cases. The move guaranteed that Judge Matthew J. Kacsmaryk, a Trump appointee who openly opposes abortion, would be assigned to the case.
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Last March, Judge Kacsmaryk issued a preliminary ruling voiding the drug’s approval and removing the pill from the market. The Biden administration asked the Supreme Court to intervene after a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, one of the country’s most conservative appeals courts, ruled in August that mifepristone should remain legal but imposed significant restrictions on access are now on hold.
Adam Liptak and Pam Belluk contributed to the report.
