Erin Hawley urges Supreme Court to restrict abortion pill as Josh Hawley looks on

Erin Morrow Hawley asked the Supreme Court on Tuesday to reimpose restrictions to the abortion inducing medication mifepristone, overruling the Food and Drug Administration.

Her husband, Sen. Josh Hawley, sat several rows behind her with two of the couple’s three children at his side.

Restricting abortion rights is a family affair for the Hawleys, who met while clerking for Chief Justice John Roberts at the Supreme Court.

Josh Hawley has been a leading opponent of abortion rights as Missouri’s senior senator. While he has said he believes the issue should be determined by voters in each state, he supports a national 15-week ban on the procedure.

But, as Congress has largely left the heavily partisan issue to the states after the Supreme Court overturned Roe v. Wade, Erin Hawley is at the heart of a case once again asking the court to intervene on abortion rights – this time to limit the drug used in the majority of abortion cases.

Ahead of the hearing, Hawley laid out the national consequence of the case, arguing that the Food and Drug Administration’s decision to allow abortion drugs to be prescribed without an in-person doctor’s visit and allowing the medication to be sent by mail limits states ability to restrict the procedure.

“What the Biden administration has done here is they’ve deliberately tried to make it impossible for voters and states who want to limit abortions,” Hawley said.

But in the courtroom, some of the justices seemed reluctant to issue a sweeping ruling to override the FDA and require that the drug only be dispensed up to seven weeks into a pregnancy, that patients would have to have three in-person visits with a doctor and that only physicians would be allowed to prescribe the drug.

Throughout her argument, Erin Hawley was asked to defend why the court should impose restrictions on the drug, rather than focusing on how to address the potential harm to her clients – a group of seven individual doctors and doctor organizations.

Justice Neil Gorsuch appeared to take issue with the lower court’s broad injunction on the whole country, saying that similar rulings were never issued during the 12 years when Franklin Delano Roosevelt was president, but have happened around 60 times over the past four years.

“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 federal action,” Gorsuch said.

The justices questioned whether it might be enough to affirm that doctors have the right to make a conscientious objection to participating in any medical care related to abortions. Erin Hawley said she would welcome that ruling, but that she felt it wouldn’t be broad enough.

She said people working in an emergency room might not know if their patient was having complications after attempting an abortion and might feel obligated to participate in an emergency situation, even if it was abortion related.

Justice Amy Coney Barrett, another of the court’s conservatives, also had questions about whether the doctors had the standing to challenge the FDA, given their ability to raise conscience objections to participating in an abortion.

Justice Sonia Sotomayor questioned whether it would be common for some of the doctors to see patients who are having complications from abortion, given the fact that abortion is banned in some of the states where they practice.

But Justices Samuel Alito and Clarence Thomas appeared to support Erin Hawley’s arguments.

Thomas keyed in on whether the FDA had violated the Comstock Act, an 1873 law that bans “medicine or means for producing or facilitating miscarriage or abortion” from being sent by mail, a focus of anti-abortion activists who are concerned clinics are sending abortion medication by mail to people in states where the procedure is banned.

Solicitor General Elizabeth Prelogar said decisions about sending medication through the mail were out of the purview of the FDA, that they are only tasked with determining the safety and efficacy of a medication.

“I don’t think it’s the FDA’s responsibility to consider that,” Prelogar said.

The Supreme Court’s ruling could potentially have large political implications in a presidential election year. Galvanized by the Supreme Court’s ruling overturning Roe v. Wade, abortion rights advocates have helped bolster Democratic electoral victories over the past two years.

In Missouri, where Hawley is seeking his second term in the Senate, voters may get a chance to decide if they want to overturn the state’s abortion ban, which has no exceptions for rape and incest.

President Joe Biden has made access to abortion a key talking point in his reelection effort. Earlier this month, his administration celebrated a decision by CVS and Walgreens agreeing to fill prescriptions for mifepristone in certain states.

His comments prompted a critical column from Erin Hawley in The World News Group, a Christian conservative news site.

“It was not so long ago when then-Sen. Joe Biden was at least ambivalent on abortion,” Erin Hawley wrote. “But such ambivalence is no longer tolerated by the pro-abortion left. Absolute abortion support is now a Democratic requirement for candidates.”