Supreme Court seems doubtful of challenge to abortion pill

A majority of the Supreme Court’s justices, both conservative and liberal, did not seem inclined to block the FDA’s existing rules for prescribing and dispensing the abortion pill mifepristone.

The case is widely seen as a threat not just to the increased accessibility of abortion pills, but to the FDA’s entire structure of regulating pharmaceuticals.

More than half the women in this country who choose to terminate a pregnancy use a combination of pills approved by the FDA, one of which is mifepristone, marketed by Danco Laboratories as Mifeprex.

The FDA first approved the pill regimen 24 years ago, and over the last eight years, the agency has eliminated some restrictions that it found to be unnecessary. For instance, the pills can now be prescribed during the first 10 weeks of pregnancy, instead of the original seven weeks, and prescriptions can be filled by mail or at pharmacies, instead of, as before, only at a doctor’s office.

Who has standing?

A group of anti-abortion doctors called the Alliance for Hippocratic Medicine challenged the FDA’s decisions providing for increased accessibility. But in the Supreme Court Tuesday, the justices focused less on the FDA’s actions and more on whether the anti-abortion group had legal standing to be in court at all.

To have standing to sue, the group would have to show that its members had suffered a concrete harm, even though they don’t prescribe mifepristone.

Lawyer Erin Hawley, representing the anti-abortion group, contended that particularly at hospitals, doctors opposed to abortion might well be drafted into finishing incomplete abortions. But she was unable to cite any example of that happening.

Instead, she pointed to affidavits filed by two Alliance doctors, examples that Justice Amy Coney Barrett found unpersuasive. “The fact that she performed a D&C does not necessarily mean that there was a living embryo or a fetus because you can have a D&C after a miscarriage,” she said, referring to the procedure known as dilation and curettage.

Barrett, a mother of seven, who herself suffered miscarriages, wasn’t the only justice to ask medical questions. Indeed, all four of the female justices asked detailed questions that likely would not have been asked at the Supreme Court prior to the appointment of the first woman in 1981.

Among the questions were inquiries about ultrasound tests and why they are not required prior to getting the pill and about the FDA’s findings that prescriptions after telemedicine or phone appointments produced no uptick in emergency room visits.

Criticism of a lower court order

Barrett and Justice Brett Kavanaugh also asked Solicitor General Elizabeth Prelogar whether there is a conscience exception that protects doctors from being required to perform abortions.

“Just to confirm on the standing issue, under federal law, no doctors can be forced against their consciences to perform or assist an abortion, correct?” Kavanaugh asked.

“Yes,” confirmed Prelogar.

Justice Neil Gorsuch pointed to this case as typical of what he called “a rash” of recent orders from individual federal judges, orders that apply nationwide—in this case, the original decision from federal Judge Matthew Kacsmaryk in Texas sought to bar the abortion pill entirely.

Gorsuch referred to the decision 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.”

There was, of course, in Tuesday’s case, a larger question, which got short shrift. And Justice Samuel Alito, author of the decision overturning Roe v. Wade, seemed to despair that his colleagues did not seem interested in using this case to directly address the powers of the FDA.

“Is there anybody who could challenge in court the lawfulness of what the FDA did here?” he asked. “Do you think the FDA is infallible?”

Justice Ketanji Brown Jackson asked about what she called “the flip side of that question. Which is, do you think that courts have specialized scientific knowledge…do you have concerns about judges parsing medical and scientific studies?”

Yes, replied Danco lawyer Jessica Ellsworth, pointing to the first decision in this case from Judge Kacsmaryk–a decision which she said “relied in part on an analysis of anonymous blog posts,” as well as studies that were subsequently withdrawn as flawed by the journals that had printed them.

This story has been updated.

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