US Supreme Court justices on Tuesday appeared sceptical that the anti-abortion groups and doctors seeking to limit access to the abortion pill have the needed legal standing to pursue.
The case, as President Joe Biden’s administration fights to maintain broad access to the medication. The justices heard arguments in the Biden administration’s appeal of a lower court’s ruling that would limit how the medication, called mifepristone, is prescribed and distributed. Four medical associations and four doctors who oppose abortion brought the challenge to mifepristone in Texas. The case places reproductive rights back on the agenda of the justices in a presidential election year.
The Food and Drug Administration’s (FDA) regulatory changes at risk in the case include allowing for medication abortions at up to 10 weeks of pregnancy instead of seven, and for mail delivery of the drug without a woman first seeing a clinician in person.
Arguing for the administration, Solicitor General Elizabeth Prelogar told the justices that the plaintiffs lacked the proper legal standing to bring the challenge and asked the court to “put an end to this case.” Prelogar said the plaintiffs failed to show, as necessary, that they have been harmed in a way that can be traced to the FDA.
The plaintiffs do not come “within 100 miles of the kinds of circumstances” needed to show legal injury, Prelogar said.
Conservative Justice Samuel Alito, who authored the court’s 2022 ruling overturning its 1973 Roe v. Wade precedent that had recognised a constitutional right to abortion, challenged Prelogar to identify who could sue the FDA.
“Is there anyone who can sue and get a judicial ruling on what the FDA did was lawful?” Alito asked. “Shouldn’t someone be able to challenge that in court? Who?”
Questioned by some of the justices, Erin Hawley, the lawyer representing the plaintiffs, told them her clients had the requisite legal standing to sue. The plaintiffs have said their member doctors will be forced to violate their consciences because they will “often be called upon to treat abortion-drug complications” in emergency settings due to what they call the FDA’s unlawful actions.
Prelogar told the justices that the FDA’s actions were lawful.
“The agency relied on dozens of studies involving tens of thousands of women. Respondents don’t identify any evidence that the agency overlooked. They just disagree with the agency’s analysis of the data before it. But that doesn’t provide a licence to authorise judicial second-guessing of the agency’s expert judgements,” Prelogar said.
The Justice Department has said these claimed harms rely on an impermissibly speculative chain of events – that other doctors would provide mifepristone to women who then experience a rare emergency and end up in the medical care of these plaintiffs.
The Supreme Court has a 6-3 conservative majority. After its 2022 abortion ruling, numerous states enacted Republican-backed measures banning or sharply restricting the procedure.
Since then, medication abortion has become the most common method of ending pregnancies in the United States, now accounting for more than 60% of abortions. Mifepristone is taken with another drug called misoprostol to perform medication abortions.
CONSCIENCE OBJECTIONS
Liberal Justice Ketanji Brown Jackson asked about the apparent mismatch between the plaintiffs’ purported legal injury and the relief they are seeking in the lawsuit, especially given that doctors with conscience objections can be exempt from performing abortions and related procedures.
“They’re saying, ‘Because we object to having to be forced to participate in this procedure, we’re seeking an order preventing anyone from having access to these drugs at all,'” Jackson said. “And I guess I’m just trying to understand how they could possibly be entitled to that.”
Jessica Ellsworth, the lawyer representing mifepristone maker Danco Laboratories, told the justices that the position taken by the plaintiffs would upend not just this medication but “virtually every drug approval” and risk evaluation and mitigation strategies (REMS) modification for a drug made by the FDA for decades.
The justices are reviewing an August decision by the New Orleans-based 5th US Circuit Court of Appeals that faulted the FDA’s decisions in 2016 and 2021 to ease access to mifepristone.
The 5th Circuit’s ruling remains on hold pending the Supreme Court’s review. A ruling is expected by the end of June.
The FDA gave mifepristone regulatory approval in 2000. It has been said that after decades of use by millions of women in the United States and around the world, mifepristone has proven “extremely safe,” and that “study after study” has shown that “serious adverse events are exceedingly rare.”
The plaintiffs in 2022 challenged the FDA’s actions in approving and widening access to mifepristone.
The plaintiffs, led by the Alliance for Hippocratic Medicine, contend that the FDA acted contrary to its mandate to ensure medications are safe in easing the restrictions on mifepristone, violating a federal law governing the actions of regulatory agencies.
Biden, seeking a second term in office in the November 5 US election, is an outspoken advocate for abortion rights. He and his fellow Democrats have sought to make abortion rights a central theme against Republicans ahead of the election.
Hundreds of abortion-rights and anti-abortion demonstrators held raucous rallies in front of the court building.