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Supreme Court sounds unlikely to limit medication abortion access

Justices aired concerns with upending the FDA’s regulation of mifepristone

Activists protest at the Supreme Court as the court hears oral arguments in a case about access to mifepristone, the drug used in medication abortions.
Activists protest at the Supreme Court as the court hears oral arguments in a case about access to mifepristone, the drug used in medication abortions. (Bill Clark/CQ Roll Call)

The Supreme Court appeared skeptical of a lower court ruling that would restrict access to medication abortion Tuesday, during oral arguments in two cases challenging the Food and Drug Administration regulation of the drug mifepristone.

Most of the justices aired concerns about the U.S. Court of Appeals for the 5th Circuit’s decision in a challenge to the FDA’s loosening of prescribing rules in 2016 and 2021 by anti-abortion medical groups and four physicians.

And some key justices, including some conservatives on the court, focused on whether the case should be in court at all or why the moral objections of a handful of doctors should lead to a court ruling that would limit access in all 50 states.

The justices are set to decide the case before the conclusion of the Supreme Court term at the end of June, in the middle of the election season where abortion access has emerged as a key campaign issue.

The challengers, in a lawsuit brought by conservative legal group Alliance Defending Freedom, contend the new regulations would lead to them being forced to provide abortions over their conscientious objections to the practice.

The 5th Circuit overturned the FDA decisions that allowed non-doctors to prescribe the medication, reduced the dose, reduced in-person visitation rules and reporting requirements and allowed the drug to be sent through the mail.

[In front of Supreme Court, a nation divided on abortion drug]

Three justices on the conservative majority who were appointed by President Donald Trump aired concerns with the scope of that ruling.

Justice Neil M. Gorsuch questioned the 5th Circuit’s use of a nationwide injunction against the FDA to address the objections raised by the doctors.

Gorsuch said there’s been a “rash” of sweeping court orders in recent years and this case may be “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.”

And Justices Brett M. Kavanaugh and Amy Coney Barrett pointed out that the challengers were still protected by federal law that allows them to not participate in an abortion.

The attorney for the challengers, Erin M. Hawley, responded that the doctors could not rely on a narrower order that would give them conscience protection or some other exemption.

“Given the emergency nature it’s simply impractical to have an objection lodged prior to understanding what’s going on in that operating room,” Hawley said.

Justice Elena Kagan pointed out that hospitals typically handle conscience objections outside of emergency situations so that a doctor would not be assigned to that case in the first place.

Hawley, the wife of Sen. Josh Hawley, R-Mo., responded that the system may not always work, and a doctor could have to decide between violating their conscience or wasting “precious moments scrubbing in and scrubbing out” in an emergency.

‘Profound harm’

Solicitor General Elizabeth B. Prelogar told the justices Tuesday that the doctors and medical group challenging the FDA were using their conscience concerns to cause “profound harm” nationwide.

“It harms the pharmaceutical industry, which is sounding alarm bells in this case and saying that this would destabilize the system for approving and regulating drugs. And it harms women who need access to medication abortion under the conditions that FDA determined were safe and effective,” Prelogar said.

Danco Laboratories, the main manufacturer of mifepristone, also asked the justices to overturn the lower court ruling during oral arguments Tuesday. Jessica L. Ellsworth, the attorney for the company, argued that courts are not in a position to “second-guess” the FDA’s assessments of drug safety.

“FDA has many hundreds of pages of analysis and record of what the scientific data showed, and courts are just not in a position to parse through and second-guess that,” Ellsworth said.

Justice Samuel A. Alito Jr. pushed back the most on arguments that the suit should not be in court, saying that the Biden administration’s position could mean almost no one could challenge the agency’s safety determinations.

“Your argument is that it doesn’t matter if FDA flagrantly violated the law, didn’t do what it should have done and endangered the health of women, it’s just too bad, nobody can sue in court. There’s no remedy. The American people have no remedy for that?” Alito said.

Prelogar responded that people who were harmed by a drug could still sue the manufacturer, and other drug manufacturers could still sue the FDA.

Prelogar also said the doctors in the case would already be covered by federal conscience protections and would not be forced to participate in abortion care.

“Doctors shall not be required to perform or assist in any part of the health care program that would violate the doctor’s religious or moral beliefs, so it’s tied to the nature of the doctor’s beliefs rather than particular procedures,” Prelogar said.

The case is the first concerning abortion to reach the justices since the 2022 decision in Dobbs v. Jackson Women’s Health Organization that overturned the constitutional right to an abortion. The challengers in the case convinced a trial court judge to suspend the FDA’s original 2000 approval of the drug as well as 2016 and 2021 alterations to prescription rules.

The 5th Circuit largely agreed with reversing the 2016 and 2021 restrictions. The Supreme Court ultimately agreed to hear the dispute over the loosening of the restrictions in 2016 and 2021, but not the challenge to the original 2000 approval.

The justices scheduled oral arguments next month in another abortion case, a dispute between Idaho and the Biden administration over the application of the state’s six-week abortion ban to emergency room care in the state.

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