Supreme Court justices weigh rolling back use of the abortion pill

A version of this story appeared in the Higher Ground newsletter from The Washington Times. Click here to receive Higher Ground delivered directly to your inbox each Sunday.

The Supreme Court on Tuesday appeared skeptical of rolling back access to the abortion pill as they weighed arguments over whether pro-life doctors can challenge the Food and Drug Administration’s recent moves to increase access to the drug.

During nearly two hours of oral arguments, some justices suggested that the pro-life doctors lacked standing, or sufficient legal injury, to challenge the FDA’s changes to its distribution and usage of mifepristone, which is used with the drug misoprostol to terminate a pregnancy.

A lower court sided with the doctors and issued an injunction restricting the use of the pill. The Supreme Court put the injunction on hold while it granted the federal government’s appeal.

Justice Elena Kagan, an Obama appointee, quizzed the lawyer representing the pro-life doctors about their complaints and suggested they appeared too speculative to meet the court’s requirements for standing. She said she didn’t see how any of the doctors had been injured by the FDA’s decisions.

“You need a person — you need a person to be able to come in and meet the court’s regular standing requirements,” Justice Kagan said. “So, who is your person?

“At the very least, to be able to say this happened to them in the past. I don’t think you have it,” she said.

Justice Neil M. Gorsuch, a Trump appointee, expressed hesitation about lower courts’ use of nationwide injunctions to block governmental actions.

“We have before us a handful of individuals who asserted a conscience objection. Normally, we would allow the equitable relief to address them. Recently, I think … we have had what we might call a rash of universal injunctions,” Justice Gorsuch said.

“This case seems like a prime example of turning what would be a smaller suit into a nationwide legislative assembly on an FDA rule or any other federal government action,” he said.

The justices were reviewing a challenge from pro-life doctors seeking to roll back access to the abortion pill nationwide.

It was the Supreme Court’s second major abortion case after its ruling two years ago that overturned Roe v. Wade, ending a national right to abortion. A draft opinion of that ruling was leaked weeks before the official decision was delivered, sparking protests outside some justices’ homes and even an assassination attempt against Justice Brett M. Kavanaugh.

Police heightened their presence on the court’s steps Tuesday and blocked off the street for protesters.

The FDA moved in 2021 to eliminate the number of in-person doctor visits needed to obtain mifepristone and allow it to be used longer into pregnancy, from seven weeks to 10 weeks. The change in the gestational period was adopted in 2016.

Solicitor General Elizabeth Prelogar, who represented the FDA, said the agency examined years of studies before making the changes. She argued that the standard of care had evolved.

“The FDA carefully parsed these studies,” Ms. Prelogar told the justices.

She took issue with the pro-life doctors’ legal battle. “They don’t prescribe mifepristone. They don’t take mifepristone,” she said.

The Justice Department is closely watching the legal battle after appealing a lower court ruling that restricted the use of mifepristone.

The case was initially brought by pro-life medical providers represented by Alliance Defending Freedom, a religious liberty legal group.

The providers say they have seen women harmed by taking the drug. The women go to emergency rooms for care, diverting resources and putting pro-life doctors’ conscientious objections at stake.

Erin Hawley, the lawyer from Alliance Defending Freedom representing the doctors, said eliminating in-person doctor visits “turned ER rooms into follow-up visits.”

She said the doctors can’t launch conscientious objections in emergency situations.

“They can’t waste precious moments,” Ms. Hawley said. “These are emergency situations. Respondent doctors don’t necessarily know until they scrub in to the operating room whether this may or may not be abortion drug harm.”

“The FDA acknowledges that women are even more likely to need surgical intervention and other medical care without an in-person visit,” she said.

The federal government notes that the drug has been used throughout five presidential administrations and argues that more than half of American women who choose to end pregnancies use mifepristone.

A federal court ruled that the pill should not have had FDA approval, but the 5th U.S. Circuit Court of Appeals did not go that far. Instead, the appeals panel said the drug could be dispensed, but not through the mail as regulators had begun to allow, and only up to seven weeks into pregnancy.

The justices will consider how far into a pregnancy the pill can be prescribed and whether it can be mailed as federal officials proposed in recent administrative changes.

The court rejected another case from the same group of pro-life doctors, who asked the justices to review the pill’s initial FDA approval during the Clinton administration.

The drug was approved in 2000 for up to seven weeks of pregnancy, but its administration required three steps: a visit with a doctor to receive mifepristone, another to obtain the drug misoprostol and a follow-up to address complications.

The pill has remained available during the appellate process after the Supreme Court placed the lower court ruling on hold.

Danco Laboratories, a producer of mifepristone, petitioned the high court over its production of the pill, challenging the lower court’s restrictions on its distribution.

Jessica Ellsworth, the attorney for Danco, told the justices that the pro-life doctors have objections to the use of the drug and can launch federal conscience protections instead of preventing others from prescribing the pill. She also said tort law holds drug manufacturers accountable for alleged legal errors.

“These individuals want to prevent anyone else from using it,” she said.

The cases are FDA v. Alliance for Hippocratic Medicine and Danco Laboratories LLC v. Alliance for Hippocratic Medicine.

A decision in the abortion pill legal battle is expected by the end of June.

Correction: A previous version of this article misquoted Ms. Prelogar about the FDA’s review of the studies.