WASHINGTON — Supreme Court justices on Tuesday seemed to question physicians’ right to sue the Food and Drug Administration to reinstate restrictions around a commonly used abortion pill — a line of questioning that suggests they are unlikely to restrict access to the pill.
Justices Elena Kagan and Ketanji Brown Jackson, in particular, repeatedly asked the plaintiffs, a Christian-based medical organization, for examples of when objecting physicians were forced to assist with abortion or its complications as a direct result of the FDA relaxing restrictions around mifepristone prescribing. Conservative Justice Samuel Alito, while appearing more sympathetic to the plaintiffs than others, also asked the Justice Department lawyer whether the scenario — a morally opposed doctor forced to treat a patient who had taken mifepristone — was “too speculative.”
Justice Neil Gorsuch, a Trump appointee, interjected at one point to vent about the “rash” of injunctions lower courts have imposed over the past several years, seemingly lobbing a complaint at Texas Judge Matthew Kacsmaryk, who first heard the case and ordered mifepristone off the market. An appeals court later reversed that ruling but upheld injunctions against two FDA decisions that extended mifepristone use to 10 weeks of pregnancy from seven, and removed the in-person dispensing requirement, which opened the channels for mail orders of the drug.
“I don’t want to hypothesize. Can you point me to any place [where doctors wanted to object to treating patients who took mifepristone, but could not]?” Jackson asked Erin Hawley, lawyer for the Alliance for Hippocratic Medicine.
Hawley responded that it is difficult to name specific instances because they happen in emergency situations.
“You need a person. You need a person to be able to come in and meet the court’s standing requirements,” Kagan said. She later pointed out that the doctors Hawley cited live in Texas and Indiana, where abortion is largely banned.
There is already an “infinitesimally small” chance that those doctors would be put in a situation where no one else at their hospital or clinic could treat a patient who took mifepristone, Kagan said, “then add to it that this is illegal in your state.”
Mifepristone, which the FDA approved in 2000, is used in nearly two-thirds of all abortions in the United States. But the Alliance for Hippocratic Medicine is arguing that the agency acted hastily and politically when approving the medicine and later reducing prescribing limits.
While the highly anticipated oral arguments are one of the first windows into the nine justices’ thinking, the court is not expected to hand down a decision until this summer.
Since the FDA dropped the in-person dispensing requirement in 2021, more doctors and clinics are providing mifepristone, particularly through telehealth appointments, according to reproductive rights group the Guttmacher Institute. Major pharmacy chains CVS and Walgreens this month announced they will soon begin dispensing the drug.
Justice Amy Coney Barrett, a Trump appointee, appeared interested in whether telehealth prescribing of mifepristone actually elevated patients’ risks, after Justice Department lawyer Elizabeth Prelogar said that in-person visits have never required ultrasounds or fetal heartbeat monitoring — so just like telehealth appointments, they usually consist of screening questions.
“When the FDA took away the in-person visit, it took away the opportunity to do that,” Hawley replied.
Justices also seemed to question whether broad mifepristone limits are a fair response to conscience objections from doctors whose hospitals and clinics can make sure they are not involved in abortion cases.
The alleged injury — that some objecting doctor somewhere may be asked to aid in complications from a medication abortion — does not match the “remedy” of a nationwide ban, said Jackson. “The obvious, common-sense remedy is to provide [consciously-objecting doctors] with an exemption,” that, she noted, government lawyers said hospitals already provide — and is not the responsibility of the FDA.
But the plaintiffs seemed to find some support in Alito, who asked defending lawyers if they believed the agency is infallible. He also asked Prelogar whether anyone could challenge the lawfulness of the FDA’s drug approval decisions in court.
“It is hard to imagine someone would have standing,” Prelogar said. If the FDA makes a mistake, or approves a drug more dangerous than beneficial, the agency could be challenged, she said — but the plaintiffs did not prove this, she argued.
The plaintiffs also did not “come within 100 miles” of proving that the FDA’s decision harmed them personally and could harm them again, Prelogar said. “The doctors don’t prescribe mifepristone, don’t take mifepristone, [and] are not required to treat patients who take mifepristone.”