Supreme Court signals it’s more likely to reject a challenge to abortion pill access

WASHINGTON — The Supreme Court on Tuesday appeared more likely to reject a challenge to the abortion pill mifepristone, with a lot of justices indicating the lawsuit must be dismissed.

The court, which has a 6-3 conservative majority, heard oral arguments on the Biden administration’s appeal of lower court rulings that restricted women’s access to the pill, including its availability by mail.

But through the arguments, there was little discussion of whether the Food and Drug Administration’s decisions to lift restrictions on the drug were illegal.

As an alternative, the justices focused on whether the group of anti-abortion doctors who brought the lawsuit even had legal standing to bring the claim. The plaintiffs, represented by the Alliance Defending Freedom, a conservative Christian legal group, argue that the FDA didn’t adequately evaluate the drug’s safety risks.

But justices, each conservative and liberal, probed whether the doctors could show that they were directly injured merely because they object to abortion and will potentially be required to offer emergency room treatment to a girl affected by serious uncomfortable side effects.

Several justices also noted that doctors who oppose abortion can already object based on their personal beliefs to assisting patients affected by abortion-related uncomfortable side effects.

“Under federal law, no doctors might be forced against their consciences to perform or assist in an abortion, correct?” conservative Justice Brett Kavanaugh asked at one point.

Justice Amy Coney Barrett, one other conservative, asked similar questions.

Even when the court were to achieve the merits and rule for the challengers, some justices questioned whether the scope of the lower court ruling was too broad by applying it nationwide as an alternative of limiting it to the doctors who sued.

Conservative Justice Neil Gorsuch said the case was a “prime example of turning what might be a small lawsuit right into a nationwide legislative assembly on an FDA rule.”

The one justices who appeared desperate to discuss whether the FDA acted unlawfully and hinted at sympathy for that argument were conservatives Clarence Thomas and Samuel Alito.

“Your argument here is that even when the FDA acted unlawfully, no person can challenge that in court,” Alito said in an exchange with Solicitor General Elizabeth Prelogar, who represents the FDA. He and Thomas each referred to the Comstock Act, a Nineteenth-century law that prohibited the mailing of medication used for illegal abortions.

Alito also wondered whether the FDA considered itself “infallible.”

Different pockets of rallies formed outside the Supreme Court constructing starting as early as 7:30 a.m. Most gave the impression to be in favor of abortion rights, chanting over megaphones, but there have been smaller groups of individuals with signs protesting against “chemical abortions” as well.

Mifepristone is used as a part of a two-drug FDA-approved regimen for the majority of abortions nationwide.

The case is a significant test for the conservative-majority court, which in 2022 overturned Roe v. Wade, the landmark ruling that established a girl’s constitutional right to finish her pregnancy.

The FDA has the backing of the pharmaceutical industry, which has warned that any second-guessing of the approval process by untrained federal judges could cause chaos and deter innovation.

Liberal Justice Ketanji Brown Jackson seized on that issue in a matter directed at Jessica Ellsworth, a lawyer representing Danco, which makes the brand name version of the pill, Mifeprex.

“Do you think that that courts have specialized scientific knowledge with respect to pharmaceuticals … or do you will have concerns about judges, parsing medical and scientific studies?” she asked.

Ellsworth noted that there are other avenues for people to object to unsafe drugs, including by filing lawsuits against pharmaceutical firms.

The oral argument comes almost a yr after Texas-based U.S. District Judge Matthew Kacsmaryk issued a sweeping ruling that completely invalidated the FDA’s approval of the pill, resulting in panic amongst abortion rights activists that it will be banned altogether.

The Supreme Court last April put that ruling on hold, meaning the pill stays widely available for now.

The Recent Orleans-based fifth U.S. Circuit Court of Appeals in August then narrowed Kacsmaryk’s decision on appeal, but left in place his ruling finding that the FDA’s move to lift restrictions starting in 2016 was illegal.

Either side appealed to the Supreme Court. The court in December took up the Biden administration’s appeal in defense of the later FDA decisions, however it opted against hearing the challenge to the unique approval of mifepristone in 2000. That issue is due to this fact not before the justices.

The court is as an alternative specializing in the later FDA motion, including the initial 2021 decision that made it available by mail, which was finalized last yr.

The court can also be considering decisions in 2016 to increase the window wherein mifepristone might be used to terminate pregnancies from seven weeks’ gestation to 10 weeks and reduce the variety of in-person visits for patients from three to 1. In one other 2016 move, the FDA altered the dosing regimen, finding that a lower dose of mifepristone was sufficient.

The consequence of the case could have sweeping practical effects if access to the drug is restricted, with many states in search of to limit abortion access within the wake of the Supreme Court’s decision to overturn Roe v. Wade.

There are 14 states where abortion is effectively banned altogether, based on the Guttmacher Institute, a research group that backs abortion rights.

— Laura Jarrett contributed.