The way forward for access to abortion pills may rely on a fundamental legal query: Who has the precise to bring a lawsuit?
Among the anti-abortion doctors involved in the Supreme Court case searching for to limit the provision of the pill is Dr. Christina Francis, who leads one among the anti-abortion groups suing the Food and Drug Administration to limit the distribution of the drug mifepristone. She says she experienced moral damage while treating patients who took these drugs.
It is unclear whether it will meet the brink crucial to bring a lawsuit in federal court – that plaintiffs would suffer specific harm if mifepristone remained widely available. Lawyers call this a standing requirement.
The FDA “is forcing me to participate in an activity to which I am morally opposed,” Dr. Francis, president of the Pro-Life American Association of Obstetricians and Gynecologists, said in an interview Friday.
These statements are echoed by other anti-abortion doctors involved in the lawsuit, including an Indiana doctor and a state legislator who demanded harsher penalties for abortion organizers and the California doctor who was a pioneer abortion pill reversal method which was not supported by scientific evidence.
None of the anti-abortion doctors are obliged to prescribe drugs or repeatedly treat post-abortion patients, although they claim that they could encounter such patients in emergency rooms and even treating uncomfortable side effects could also be difficult for them. This, they said, would expose them to “enormous stress and pressure,” forcing them to make a choice from their conscience and their skilled obligations.
The federal government and lots of legal experts dispute these claims. The government cites years of scientific evidence showing that serious complications from mifepristone are very rare, and experts express skepticism about doctors’ claims of ethical harm.
“It seems like a general objection to public policy,” said Elizabeth Sepper, a law professor on the University of Texas and an authority on conscience protection. “There are many things that our government does that violate our consciences. We might think: I don’t want to be involved in a state that carries out the death penalty. But our legal system does not allow us to go to court and say, ‘I will stop this public policy because it violates my conscience.’
The plaintiffs’ arguments regarding standing may also conflict with Supreme Court precedent.
2009 court decision Summers v. Earth Island Institutestated that even if there was a statistical probability of harm, it was insufficient to stand.
If the judges find that the allegations are ineffective, the case may be dismissed altogether.
The dispute was reflected in the files submitted to the Supreme Court.
Attorney General Elizabeth B. Prelogar, acting for the government, stated that the scant evidence provided by opponents in no way established actual harm.
“Although mifepristone has been available on the market for decades,” she wrote, plaintiffs “cannot identify a single instance in which any of their members were required to provide such care.”
“Stress and pressure” are inherent to the work of doctors, she added, maintaining that “merely encountering a person in need of emergency care” didn’t qualify as an injury suffered by a physician whose duty was to treat patients.
Danco Laboratories, manufacturer of mifepristone, warned that if the court finds that the plaintiffs have standing to suethis might open the door to a flood of lawsuits from any doctor who didn’t like a drug or regulation, “destabilizing the industry and harming patients.”
Lawyers for Alliance Defending Freedom, a conservative Christian legal group representing doctors, noted that the appeals court found that doctors and anti-abortion groups had standing.
On Tuesday, the case will concentrate on changes introduced by the FDA since 2016 which have expanded access to mifepristone. These decisions allowed patients to acquire mifepristone prescriptions via telemedicine and receive them by mail.
Lawyers for the plaintiffs said the choices increased the danger that anti-abortion doctors “will see more women suffering sudden complications from the use of abortion drugs.” Complications, they are saying, include “retained fetal parts, heavy bleeding, and severe infections” that could cause doctors “mental, emotional and spiritual distress.”
The federal government cites data showing that there was no increase in complications because the 2016 decision, and serious complications occur in lower than 1% of cases.
In her written statement regarding the lawsuit, Dr. Francis stated that she was caring for a lady who experienced complications after taking abortion pills provided by a web site that shipped them from India. When asked why this may be relevant to the FDA’s decisions since it could not approve or regulate the pills in query, Dr. Francis stated that its decision to permit U.S. telemedicine providers to mail FDA-approved pills one way or the other “also allows women to be able to send drugs from India.”
Dr. Francis said in an interview that over the past two years she had cared for four or five patients who were bleeding, had infections or needed surgery to complete an abortion.
The federal government, states and hospitals have established conscience protection policies that allow doctors and other health care professionals to opt out of providing care they object to, essentially creating a path for doctors opposed to abortion to avoid the harm they claim in their lawsuit. However, the plaintiffs’ statements, lawsuit and legal letters do not indicate that any of the doctors invoked conscience protection.
Dr. Ingrid Skop, another anti-abortion doctor who made a statement, said in written responses to The New York Times that she had not invoked such protections. “The group I practiced with for 25 years had a policy of not performing abortions, so it wasn’t a problem,” Dr. Skop said. In her current position, where she works several shifts a month and covers labor and delivery and the emergency department, if “a patient comes in with abortion-related complications, I’ll maintain them,” she said.
Dr. Skop was the author of two recently retracted studies that suggested abortion pills were dangerous, and both studies cited the lawsuit.
Dr. Francis said in an interview that often “in non-emergency situations, I actually have been capable of be relieved of patient care.” She said that in emergency situations she “felt forced to violate her conscience.”
Although anti-abortion doctors say mifepristone is dangerous for women, both Dr. Francis and Dr. Skop have expressed no opposition to the drug’s use in treating women who experience miscarriages. In a regimen identical to the medical abortion protocol, mifepristone followed by misoprostol is used to treat miscarriages.
Dr. Francis said she only prescribed misoprostol in these situations because she hadn’t seen enough research to know whether pre-treatment with mifepristone would be more beneficial. “I don’t mind it on moral grounds,” she said.
Adam Liptak AND Jodi Kantor reporting contributed. Julia Tate contributed to research.
