A majority of Supreme Court justices appeared skeptical Tuesday of the idea of a nationwide ban or new limits on mifepristone, the primary drug used for medication abortions.
The case was the first abortion-related hearing since the court reversed Roe v. Wade and the proceedings at time went into detail of the process and any complications of the use of medication abortion.
At issue in the case are lower-court rulings that would have rolled back recent Food and Drug Administration decisions to ease access to the mifepristone. A district court had instituted a nationwide ban as well.
But the case may simply be determined on whether the doctors who brought the original lawsuit had the ability to bring the case in the first place.
Conservative and liberal justices demanded to know why access to mifepristone needed to be limited if the small number of doctors involved could simply exercise their own religious and conscientious objections individually.
A decision is expected by July.
Here’s what to know from Tuesday’s arguments:
Conservatives tear into nationwide injunction
If things seemed to be going badly for the abortion pill challengers as Tuesday’s hearing began to unfold in earnest, their prospects of prevailing appeared to grow even dimmer during the second hour of arguments, when Chief Justice John Roberts and Justice Neil Gorsuch tore into the challengers’ attorney over the nationwide impact caused by the lawsuit.
“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 attorney, Erin Hawley.
As she began to explain how such a remedy would be “impractical,” Gorsuch interjected to speak to the recent spike in universal injunctions. He said he went back “and looked and there are exactly zero universal injunctions that were issued during Franklin Delano Roosevelt’s 12 years in office – pretty consequential ones.”
“And over the last four years or so, the number is something like 60 and maybe more than that,” he continued. “And they’re a relatively new thing. And you’re asking us to extend and pursue this relatively new course, which this court has never adopted itself.”
“This 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 government action,” Gorsuch said.
The Biden administration contends that even if some action in favor of the plaintiffs was warranted, it should not have affected the entire country as opposed to just the litigants in the case.
“What the court did … is enter sweeping nationwide relief that restricts access to mifepristone for every single woman in this country. And that causes profound harm,” Solicitor General Elizabeth Prelogar said.
Is it enough that doctors can use religious objections for abortion-related care?
The discussion at one point turned to a key question – if the doctors challenging the nationwide approval of mifepristone can simply raise a “conscientious objection” that doesn’t require them to assist in an abortion rather than force a nationwide ban on the drug.
Conservative Justice Brett Kavanaugh asked whether federal law provides some protections for doctors who object to providing an abortion on moral and religious grounds – a sign that he may not be convinced that the plaintiff doctors had the legal right – known as standing – to bring their suit against the FDA since they could not demonstrate any injury to them stemming from the agency’s regulations.
“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, who is sometimes a swing vote on the high court, asked Prelogar.
“Yes, we think that federal conscience protections provide broad coverage here,” she said. “We think that those amendments guard against the kind of injury that respondents are asserting.”
Justices asked an unusual amount of detailed medical questions
Several justices asked questions beyond the law, seeking detailed answers about medical procedures and practices related to reproductive care and mifepristone, one of two drugs used in medication abortion.
Justice Ketanji Brown Jackson sought more information on how often a doctors might need to perform emergency procedures for a patient who had taken drugs for a medication abortion, even if they object to abortion.
“It’s my understanding that sometimes, the completion, it doesn’t involve surgical intervention. Do you have a sense of how often?” the liberal justice asked.
Jackson also asked Erin Hawley, an attorney representing the abortion pill’s challengers, how close a doctor might need to be to a procedure they object to in order to be “complicit.”
“Like I — I work in the emergency room and this is going on? I’m handing them a water bottle? I’m — like, what do you mean complicit in the process?” Jackson asked.
At another point, conservative Justice Amy Coney Barrett asked about a dilation and curettage, or D&C, the procedure to remove tissue from the uterus, and noted it did not necessarily mean that a doctor was removing a living embryo, since a D&C can happen after a miscarriage. She also asked specific medical questions about the need for tissue to be removed if an abortion wasn’t complete after a medication.
Barrett also pressed if the elimination of the in-person visit to provide mifepristone — a step in medication abortion that the FDA permanently ended in 2023 — would “lead to mistakes in gestational aging which could increase the need for a D&C or the amount of bleeding.”
Medication abortion is only available for people through the first 10 weeks of pregnancy. Under current regulations, while a person does not need to see a provider in-person to receive drugs for a medication abortion, providers still must be available to assess gestational age and whether someone may have an ectopic pregnancy. Most medication abortions occur without an ultrasound.
Because of safety issues, pregnant people are unable to use this method of abortion if they have an ectopic pregnancy, a rare event in which the fertilized egg implants outside the uterus. Even without an in-person visit, providers will ask a pregnant person a series of screening questions about pelvic pain, unusual bleeding, or if the person had an ectopic pregnancy previously.
Alito and Thomas really tried hard to challenge FDA
Justice Samuel Alito, who wrote the opinion reversing Roe v. Wade, and fellow ardent abortion opponent Justice Clarence Thomas, pushed the question of whether anyone can actually challenge the FDA on drug approvals.
The FDA wants to be “infallible,” Alito said at one point.
“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 asked.
Prelogar stressed that challengers to FDA drug approvals need to show concrete harm to themselves, not simply a wider objection to policy.
Jackson, meanwhile, then flipped a question from Alito on its head to give the FDA’s defenders an opportunity to argue that the agency is better suited to make calls on medical science than the courts.
Congress gave the FDA the authority to regulate drugs more than 60 years ago, and in 1962 it was also given the authority to require that drug companies prove that the drugs are effective. Mifepristone was initially approved in 2000, but regulations around its use have shifted since then.
Comstock Act looms large for future cases
Alito said that a long unenforced federal law banning the mailing of drugs used for abortions was not “obscure” but rather a “prominent” law.
Alito’s reference to the Comstock Act, a 19th century statute outlawing the use of the mail to send various “lewd” materials, is notable. Some anti-abortion activists see the law as an avenue to end medication abortion, and perhaps all kinds of abortions.
The Comstock Act has not been a central part of this case, but the challengers have gotten a little bit of traction at the lower-court level with their argument that the FDA acted unlawfully in its approach to mifepristone because it did not take into account to Comstock Act’s criminal prohibitions on mailing drugs used for abortions.
Prelogar countered on Tuesday that it is not the FDA’s job to enforce criminal law, but that the agency did get advice at the time from the Justice Department about its interpretation of the law.
“I think that the Comstock provisions don’t fall within FDA’s lane,” she said.
Defenders of the FDA have also argued that the Comstock Act’s prohibitions are geared towards “unlawful” abortions, and this case is attempting to limit the access of mifepristone even in places where abortion is legal.
Thomas also brought up the Comstock Act in questions for Danco, a mifepristone manufacturer that has intervened to defend the FDA’s regulation. Danco’s attorney said that this case was not an appropriate venue for the court to weigh the reach of the Comstock Act.
Power of Trump’s judicial nominees is clear
That the challenge to mifepristone reached the Supreme Court in such a short amount of time was no accident – a result of the “judge-shopping” phenomenon seen most recently on major political issues including health care, firearms and abortion.
The case challenging the FDA’s approval of mifepristone and subsequent access changes was filed in the Amarillo Division of US District Court of the Northern District of Texas, where US District Judge Matthew Kacsmaryk – an appointee of Trump who had previously worked for a religious liberty legal organization – is assigned to hear all cases under local rules.
The 5th US Circuit Court of Appeals threw out part of the ruling – saying Kacsmaryk was incorrect in blocking the drug’s approval in 2000 – but left in the injunction against FDA’s actions on access, a ruling that could have a major impact on how the agency and US drug companies operate.
The high court essentially was left with no choice but to take up the case.
The US Judicial Conference this month instituted process changes that would limit the guaranteed impact of judge shopping, but that doesn’t mean social and political lawsuits won’t continue.
