On Tuesday, a majority of the Supreme Court seemed inclined to reject a proposal to sharply limit access to abortion pills.
During the roughly 90-minute hearing, most judges questioned whether the plaintiffs, who don’t prescribe abortion pills or commonly treat abortion patients, even had standing to bring the lawsuit. The justices, including several members of the conservative majority, questioned whether the plaintiffs were able to show that they suffered the moral harm they claimed to have suffered due to the availability of the mifepristone pill.
The case centers on whether it would be vital to reverse changes made by the Food and Drug Administration in 2016 and 2021 that expanded access to the drug.
These changes allowed patients to obtain prescriptions for mifepristone via telemedicine and receive abortion pills by mail, significantly increasing the availability of abortion medications.
Several justices questioned the treatment sought by the plaintiffs: the application of nationwide drug restrictions in a case that may have very broad ramifications because it might be the first time a court has questioned the FDA’s regulatory authority.
“This case appears to be a perfect example of turning what might have been a small lawsuit into a nationwide legislature based on an FDA regulation or any other action by the federal government,” said Judge Neil Gorsuch, an appointee of President Donald J. Trump.
Here are some takeaways:
Plaintiffs’ claims of entitlement to due process have been met with considerable skepticism.
To have standing, plaintiffs must show that they’ve suffered specific harm consequently of the policy or motion they’re difficult in court. In this case, the plaintiffs, a bunch of doctors and anti-abortion organizations, claim that they suffer moral harm because patients taking abortion pills may later seek treatment in the emergency departments of hospitals where a few of these doctors work.
Attorney General Elizabeth B. Prelogar, acting for the government, found that the plaintiffs “did not come within 100 miles of the circumstances that the court had previously determined” as a basis for standing. She cited the proven fact that doctors don’t prescribe abortion pills and should not forced to treat women who take them. More importantly, she identified that because serious complications from taking abortion pills are very rare, it isn’t common for these doctors to encounter a lady who has experienced serious complications requiring treatment.
Plaintiffs’ attorney Erin Hawley responded by claiming that doctors treated patients using abortion pills in emergency departments. She cited written statements in the case of Dr. Christina Francis and Dr. Ingrid Skop.
Justice Amy Coney Barrett questioned whether the doctors presented examples of “actual participation in an abortion intended to end the life of an embryo or fetus.” She added: “I don’t read either Skop or Francis to say they were ever involved in this.”
The judges also questioned the legitimacy of anti-abortion organizations on this case. These organizations claim they were harmed because they’d to divert resources from other advocacy efforts to challenge the abortion pill.
Justice Clarence Thomas seemed skeptical of that claim, saying the need to prioritize how a corporation spends its money and time would apply to “anyone who is aggressive or vigilant in bringing lawsuits.” Just using resources to defend your position in court, as you now say, causes harm. This seems easy to produce.
There was quite a lot of discussion about the protection of conscience.
Federal conscience protections allow doctors and other health care providers to refrain from providing care to which they object on moral or religious grounds. In many hospitals, doctors register their conscientious objections upfront so that they’re never called upon to take part in a treatment they object to.
Lawyers for the government and mifepristone manufacturer Danco Laboratories said that if anti-abortion doctors actually encountered an abortion patient, they might easily invoke conscience protections and refer the case to one other doctor who had no moral objections. The plaintiffs are “individuals who do not use this product, do not prescribe this product and have a conscience not to treat anyone who has taken this product,” said Jessica Ellsworth, an attorney representing Danco.
Ms Hawley said there have been cases in emergency departments where plaintiffs got no time to resign, forcing them to “choose between helping a woman with a life-threatening condition or violating their own conscience.”
Justice Ketanji Brown Jackson said there’s a “discrepancy” between what anti-abortion doctors claim they’ve experienced and the cure they’re searching for. “It would obviously be common sense to provide them with an exemption whereby they do not have to participate in this procedure,” Judge Jackson said.
Noting that such a treatment already exists in the type of conscience protection, she said: “So I think they are asking for something more in this lawsuit. They say: “Because we oppose being forced to participate in this procedure, we are seeking an injunction preventing anyone from accessing these drugs.” “
Judge Barrett asked about the plaintiffs’ claim that the Emergency Medical Treatment and Labor Act, or EMTALA, which requires hospital emergency departments to treat patients with urgent health problems, would override doctors’ conscientious objections and force them to treat patients who had abortions in anyway, pills. Ms. Prelogar said that wouldn’t happen because the EMTALA program applies to hospitals, not individual doctors, so doctors with moral concerns can opt out of it.
The case could impact the government’s role in regulating drugs – and perhaps regulating anything.
Many regulatory policy experts and pharmaceutical industry leaders have said that if the court decides to challenge the FDA’s science, it would discourage companies from developing new drugs and ultimately harm patients who do not have such drugs. They say it could also shake up regulators at other government agencies.
Several judges asked about this issue. “Do you have concerns about judges analyzing medical and scientific research?” Judge Jackson asked Ms. Ellsworth, the manufacturer’s lawyer. Ms Ellsworth said this was a priority, noting that two studies cited to show mifepristone was dangerous were recently withdrawn.
“That’s why the FDA has on its docket hundreds of pages of analyzes of what the scientific data has shown,” Ms. Ellsworth said. “And the courts just can’t analyze it and figure it out.
19th century anti-vice law emerged.
The Comstock Act, passed in 1873, prohibited the shipment of drugs that could be used to terminate a pregnancy.
Justices Alito and Thomas asked whether the statute, which has not been applied for decades and has been narrowed by courts and Congress, has been applied as plaintiffs claim.
“Comstock regulation is outside the FDA’s purview,” said Ms. Prelogar, who said it’s the FDA’s responsibility to determine and regulate the safety and effectiveness of medication. She also emphasized that the Department of Justice has opined that the Comstock Act only applies if the sender intended the recipient of the materials to “unlawfully use them.”
Ms. Ellsworth warned of what could happen if the court decided on the act used. “I think this court should think carefully about the harm it could cause by allowing agencies to take action based on statutory duties that Congress has assigned to other agencies,” she said.
