The U.S. Supreme Court signaled Tuesday it would likely retain widespread access to one of the two common drugs used in medication abortion, in a case that could have nationwide implications for reproductive rights and the authority of federal agencies.
During oral arguments, a majority of the justices from across the ideological spectrum appeared deeply skeptical that a group of anti-abortion doctors and organizations had the right to sue the Food and Drug Administration (FDA) over changes the agency made to make it easier to access mifepristone.
In particular, the conservative justices appointed by former President Trump questioned whether any of the doctors in the lawsuit could show they had personally been harmed by the government’s actions to regulate mifepristone.
Justice Neil Gorsuch, one of the thee conservatives appointed by Trump, also joined with the liberal justices to question the broad relief the groups were seeking: rolling back all the changes the FDA made since 2016.
“We’ve had … a rash of universal injunctions or vacaturs. And 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 government action,” Gorsuch said.
A decision isn’t expected until June or July, but a ruling in favor of the FDA would be a major boost for the agency’s authority to regulate drugs and for reproductive-rights groups that have been trying to preserve access to mifepristone.
But even if the court upholds broad access to mifepristone it will still remain illegal in the more than dozen states that ban abortion.
The doctors suing asserted they would be violating their morals if they had to treat a woman suffering complications from using mifepristone. But as Solicitor General Elizabeth Prelogar and some of the justices noted, the doctors have the ability to opt out if such a scenario were to occur.
By suing the FDA over a potential harm, they were asking the Supreme Court to prevent all women across the country from accessing the pills, rather than seeking a remedy to their specific circumstances.
Justice Elena Kagan at one point asked Erin Hawley, the attorney representing the Alliance for Hippocratic Medicine, whether any of the doctors involved in the lawsuit could show specific injury from mifepristone.
“You need a person,” Kagan said. “So who’s your person?”
Justice Kentanji Brown Jackson asked Hawley a similar question.
“I don’t want to hypothesize. Can you point me to any place in the declarations where a [doctor] states that they attempted to object [to giving mifepristone] but were unable to?” Jackson said.
Hawley said she could not.
Hawley is married to Sen. Josh Hawley (R-Mo.), who was in attendance for the arguments.
Over about 90 minutes of arguments, the Biden administration and Danco, the drug company that makes the brand name Mifeprex, emphasized the rigorous scientific studies that go into any FDA decision. But much of their arguments focused on standing.
“With respect to these regulatory changes, it’s hard to identify anyone who would have standing to sue,” Prelogar said in response to a question from Justice Samuel Alito.
In looking at “the specific respondents in this case and their theories of standing, we don’t think they come within 100 miles of the kinds of circumstances this Court has previously identified” for harm, Prelogar said.
The case centered around whether federal regulators overstepped their authority by loosening restrictions to make mifepristone easier to access.
Those changes included increasing the gestational age at which mifepristone can be used to up to 10 weeks of pregnancy, allowing the medication to be mailed to patients, lowering the dosage, allowing telehealth prescribing, and permitting providers other than physicians to prescribe the drug. This was the first time abortion has come before the court since the same justices overturned Roe v. Wade in 2022.
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