Justices appear skeptical of call to restrict abortion pill

The Supreme Court on Tuesday appeared skeptical of an effort to restrict access to a widely used abortion pill — with conservative and liberal justices alike raising questions about whether anti-abortion doctors can prove concrete injuries that give them standing to sue and whether a national judicial ruling rolling back availability of the drug is justified.

During the roughly 90 minutes of oral arguments, two conservative justices likely to be pivotal votes in the case — Neil Gorsuch and Amy Coney Barrett — expressed repeated doubts about harms the anti-abortion physicians claimed they’ve faced in treating patients who’ve taken abortion pills and needed follow-up care. Those two justices also questioned whether curtailing access to the drug would address those alleged harms.

And Gorsuch joined liberal justices in questioning the broad ruling the physicians are seeking: a nationwide rollback of years-old Food and Drug Administration policies that expanded access to the drug, mifepristone. He said the challengers’ request amounted to the type of “universal injunctions” that have been criticized in recent years by conservative legal scholars and others as an overreach.

The case was brought by several groups of anti-abortion doctors who formed the Alliance for Hippocratic Medicine in 2022 in Amarillo, Texas — the jurisdiction of a conservative district court judge who ordered a de facto national ban on the pills in the early stages of this case, prompting accusations of judge shopping and calls for reforms.

A decision that sides with the Biden administration — likely to come in June — would be a major victory for the FDA’s authority to regulate prescription drugs and for abortion-rights advocates who have sought to protect access to mifepristone, the drug used in roughly two-thirds of abortions in the U.S.

A ruling later this year could also reshape the 2024 election as Democrats work to make abortion rights their leading argument for reelecting President Joe Biden, pushing the issue to the forefront just a few months before ballots are cast.

Since Dobbs, Democrats have used the issue to outperform expectations in elections across the country as Republicans have searched for an effective response. President Joe Biden has made the issue a key part of his campaign strategy and is working to remind voters that former President Donald Trump appointed three of the five justices who overturned Roe and has more recently floated a national ban on abortion at 15 or 16 weeks of pregnancy.

The Alliance for Hippocratic Medicine challenge to abortion pills is the first major reproductive rights case to come before the court since the 2022 Dobbs ruling, which ended the federal right to abortion. In the case argued Tuesday, a coalition of anti-abortion medical groups asked the justices to roll back rules the FDA issued in 2016 and 2021 that made it much easier to obtain abortion pills, including policies allowing telemedicine prescription and mail delivery.

The federal government and mifepristone manufacturer Danco Laboratories argued that the FDA’s decision to loosen restrictions on the drug, one of two typically used to end an early pregnancy, was based on a mountain of scientific data and the agency’s expertise and should not be overridden by courts or be open to challenges from third parties who can’t prove a connection between the policies in question and the harms they claim to have experienced.

Justice Ketanji Brown Jackson agreed, asking both the Danco attorney and her own colleagues: “Do you think that courts have specialized scientific knowledge with respect to pharmaceuticals? Do you have concerns about judges parsing medical and scientific studies?”

Jackson’s question dovetailed with claims by the federal government and medical groups that all sorts of drugs — from contraceptives to Covid shots — could face legal challenges if the Supreme Court effectively overrules the FDA’s judgment.

A lawyer for the anti-abortion groups, Erin Hawley, insisted Tuesday that the suit did not ask judges to step into the FDA’s shoes, but only to take note of what she called contradictions in the agency’s justifications as it loosened the limits on the abortion drug.

“We’re not asking that the court second-guess the agency’s determinations at all,” Hawley said.

However, the arguments Tuesday suggested strongly that the Supreme Court will not use the case to resolve the legality of the FDA’s actions and will instead zero in on whether the groups backing the suit should have been permitted to proceed with it and whether the relief they won from lower courts was needed to address those alleged harms.

Justices in both of the court’s ideological wings challenged Hawley to explain in detail the nature of her clients’ moral objections and how extensive they were.

Some of the most pointed questions on that topic came from Barrett, who leveled a series of fact-specific queries about the medical complications the doctors who brought the suit allege they have encountered. She said some of their claims seemed to fall short, because it wasn’t clear the physicians raised objections to dealing with complications that followed an abortion as opposed to taking part directly in terminating a pregnancy.

“I think the difficulty here is, at least to me, these affidavits do read more than the conscience objection is strictly to actually participating in the abortion to end the life of the embryo or fetus,” Barrett said.

Barrett also questioned the anti-abortion groups’ claims they were injured by having to expend resources to sue the FDA, and expressed doubts that some members of the Alliance faced a real threat of having to handle an emergency related to a medication abortion. Some members of the groups are retired, and others are dentists, she noted.

Another blow to the anti-abortion groups came when Gorsuch said he saw the case as emblematic of what he said was a mushrooming number of suits aimed at shutting down government policies in order to address the claims of a “handful of individuals.”

“We've had, one might call it, a rash of universal injunctions,” Gorsuch said. “And this case seems like a prime example of turning a lawsuit into a nationwide legislative assembly on an FDA rule or any other federal government action.”

Both Gorsuch and Chief Justice John Roberts suggested tailoring a ruling to apply just to the parties suing rather than the entire country.

Conservative Justices Clarence Thomas and Samuel Alito were the only two Tuesday who seemed to embrace the challengers’ position and grilled Solicitor General Elizabeth Prelogar on whether the Biden administration’s arguments against the doctors’ standing means they believe no one has the right to sue the FDA over harms caused by medications the agency has approved.

“Do you think the FDA is infallible?” asked Alito. “Your argument here is that even if the FDA acted unlawfully, nobody can challenge that in court.”

Prelogar said that both patients and drug companies sometimes have standing to challenge FDA decisions, although it’s unclear when they would have authority to challenge decisions expanding access to an already-approved drug. The anti-abortion groups backing this suit were not “within 100 miles of the circumstances” needed to have such standing, she said.

“If that is enough, then every organization in this country has standing to challenge every policy they dislike,” Prelogar added.

Several justices also referenced the second major abortion case the Court will hear this term: Idaho’s challenge to federal laws requiring hospitals to provide treatment — including an abortion when needed — to patients experiencing a medical emergency.

Hawley argued that the Biden administration “can’t get its story straight” on the rights of doctors to refuse to provide medical care if they have a religious or moral objection, claiming that the DOJ shouldn’t be able to say the doctors in the abortion pill case could simply invoke their conscience rights rather than demanding more restrictions on abortion pills for everyone while at the same time arguing in the Idaho case that doctors should not be allowed to turn away pregnant patients in crisis.

Arguments in that second case are set to take place on April 24.