DemDaily: Supreme Court Debates Access to Abortion Pill

March 27. 2024

The Supreme Court of the United States (SCOTUS) on Tuesday heard oral arguments in Food and Drug Administration v. Alliance for Hippocratic Medicine in a case concerning nationwide limits on access to the commonly used abortion drug mifepristone.

It is the most significant abortion case to come before the High Court since the justices historically revoked a woman's constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization -- turning the authority to implement abortion laws over to individual states.

Since the Court's June 2022 decision, 21 states have either banned or significantly limited access to abortion.

Medication abortions, which accounted for 63% of all US abortions in 2023, became the next reproductive rights political and legal battleground, now before SCOTUS.

Medical Abortion: The two-pill abortion regimen, first approved by the US Food and Drug Administration (FDA) in 2000, is used in a majority of abortions nationwide. The first drug, mifepristone, ends a pregnancy and the second, misoprostol, empties the uterus. Mifepristone is also used to treat women who have suffered miscarriages and postpartum hemorrhaging, as well as hormone-related conditions and stomach ulcers.

The case was initiated in November 2022 when a collective of anti-abortion doctors, represented by the right-wing Alliance Defending Freedom, went to Texas federal court to challenge the Food and Drug Administration’s (FDA) initial approval of mifepristone in 2000, as well as a series of decisions by the FDA in 2016 and 2021 that expanded access to the drug.

In an unprecedented April 7, 2023 ruling, Texas US District Judge Matthew Kacsmaryk, a conservative Trump appointee with deep ties to the anti-abortion movement, overturned the FDA's approval of mifepristone and suspended its distribution. Kacsmaryk falsely asserted that the drug, which is scientifically proven to be extremely safe, had resulted in "many deaths" and used “to kill the unborn human.”

Mifepristone manufacturer Danco, which joined in the Department of Justice's appeal of the Texas decision, called the ruling an “unprecedented judicial assault” on the nation’s regulatory process which could undercut FDA's authority and spark challenges to other approved drugs.

On April 23, the US Supreme Court stayed the Texas decision and sent the case back to the New Orleans-based 5th US Circuit Court of Appeals -- widely recognized as the most conservative circuit court in the country.

While the three-judge panel ruled on August 15 that the challenge to mifepristone's initial approval of the drug had come too late, they rolled back the FDA’s 2016 and 2021 decisions that expanded access to the drug, pointing to flaws in the FDA’s decision-making process.

They ruled access to mifepristone must be severely restricted, ordering a ban on telemedicine prescriptions, mail delivery and pharmacy dispensing of the drug. The ruling also restricted access from 10 weeks of pregnancy to seven and reimposed a requirement that only physicians may prescribe the pills.

The decision did not take immediate effect as SCOTUS agreed to hear the case, setting up a showdown on reproductive rights before the same court that reversed Roe v. Wade.

The Arguments
During roughly 90 minutes of oral arguments on Tuesday, the nine justices heard from three separate attorneys: US Solicitor General Elizabeth Prelogar, who represented the FDA; Jessica Ellsworth, representing drug manufacturer Danco; and Erin Hawley, from the Alliance for Hippocratic Medicine, who argued on behalf of the plaintiff coalition of organizations.

Both conservative and liberal justices appeared skeptical of the challenge to restrict access to mifepristone, questioning the standing of the plaintiffs to challenge the FDA's authority -- which requires the anti-abortion doctors and groups to show that they will suffer concrete harm if the pill remains widely available.

Chief Justice John Roberts and fellow conservative Justice Neil Gorsuch tore into Hawley over the nationwide impact caused by the lawsuit. Gorsuch, describing the case as an effort by “a handful of individuals,” said it was “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.”

His concerns were echoed by other justices, who questioned whether any of the doctors involved in the lawsuit could show they were harmed by the federal government’s approval and regulation of the abortion drug.

Justice Elena Kagan told Hawley that her theory of standing sounded “very probabilistic,” while also pointing out that no court in history has restricted access to a drug approved by FDA.

Justice Ketanji Brown Jackson also questioned the plaintiff's standing, saying, “I’m worried that there is a significant mismatch in this case between the claimed injury and the remedy that is being sought.”

The justices pressed the abortion pill challengers on why a nationwide ban is needed if doctors can conscientiously object to treating certain patients or pursue a narrower remedy that applies only to the plaintiffs.

Justice Amy Coney Barrett voiced skepticism that the current conscience exemptions would not provide enough protection for healthcare providers opposed to abortion, as did Justice Brett Kavanaugh, asking Prelogar, “Just to confirm, under federal law, no doctors can be forced against their consciences to perform or assist in an abortion, correct?”

Conservative anti-abortion Justices Samuel Alito and Clarence Thomas questioned who, if not this group of doctors, would be in a position to sue to block the drug if the FDA was wrong about its safety,

Alito was almost hostile in his questioning, asking Ellsworth if Danco’s interest in the case is only that “you’re going to make more money.”

Both brought up the Comstock Act, an 1873 anti-obscenity law that bans mailing abortion-related materials and which plaintiffs claim bars the FDA from allowing mifepristone to be sent through the mail.The Biden administration has issued guidance declaring the Act only applies if someone intends to break the law.

According to a February 20-28 KFF Health Tracking poll, two-thirds of US adults -- including 86% of Democrats and 67% of Independents -- support a law guaranteeing a federal right to abortion; 57% of Republicans oppose such a law.

Should the court preserve full access to mifepristone, the pills will remain illegal in more than a dozen states that have enacted near-total abortion bans.

The Supreme Court's decision is expected at the end of June or early July. -- just months in advance of the 2024 presidential election.

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Kimberly Scott

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Sources: SCOTUSBlog, Politico, NPR, New York Times, CNN, CBS, FDA

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