Most Supreme Court justices were skeptical of allowing abortion opponents to sue to restrict access to mifepristone, which is commonly used in pregnancy terminations in the US. The high court heard arguments regarding the FDA’s approval of the drug in 2000 and the subsequent rule changes to access it more easily in recent years. The court appeared likely to maintain the current federal rules that allow mifepristone to be shipped through the mail and used to induce an abortion in the first 10 weeks of pregnancy without an in-person doctor visit.
The arguments in the case focused on whether the group challenging the FDA’s rules, known as the Alliance for Hippocratic Medicine, had the legal standing to sue. Solicitor General Elizabeth Prelogar argued that the group did not have the right to challenge the FDA’s rules on mifepristone. The case stemmed from a Texas federal judge’s ruling that overturned the FDA’s approval of mifepristone and a subsequent stay by the Fifth Circuit Court of Appeals on rule changes making the drug more accessible.
Representatives of the drug distributor Danco argued that lower courts made errors in their rulings based on retracted studies and lacked scientific expertise. Anti-abortion advocates, represented by Erin Hawley, argued that the FDA’s rules did not make accommodations for conscience objections to prescribing the abortion pill. Justices Ketanji Brown Jackson and Neil Gorsuch questioned whether the case could lead to a broad challenge to the FDA’s regulatory rollbacks.
Hawley cited a doctor’s moral injury from providing emergency treatment to patients who had taken mifepristone as an argument against the FDA’s rules. However, some justices, including Amy Coney Barrett, expressed skepticism about the doctor’s claims of moral injury. The argument was also made that doctors may be forced to assist with medical abortions against their objections due to the effects of the FDA’s regulatory rollbacks.
Health care providers have expressed concerns that if mifepristone becomes unavailable or difficult to obtain, they would have to rely on using only misoprostol, which is less effective in ending pregnancies. The two consolidated cases, FDA v. Alliance for Hippocratic Medicine and Danco Laboratories, LLC v. Alliance for Hippocratic Medicine, are expected to be decided by the end of June. Justices will also hear arguments next month over whether a federal law on emergency treatment at hospitals must include abortions, even in states that have otherwise banned them.
