Terry H. Schwadron
March 27, 2024
It certainly sounded as if Supreme Court justices were looking for the narrowest grounds to consider the anti-abortion case that demands an end to nationwide distribution of mifepristone, half of the pill combination that account for 60 percent of abortions in the country.
Instead, the bulk of justice questions seemed to focus on whether any of the seven doctors who formed the Hippocratic Alliance suing the FDA really have suffered any injury and on the mismatch with considering that only a nationwide ban on distribution of the pill could provide a remedy.
Relatively lost was what had been a main point for the plaintiffs — that the Federal Drug Administration (FDA) had erred in approving the drug 23 years ago and again in loosening requirements in 2016 and in 2021 to eliminate any requirement for in-person medical visits.
Any ruling on restoring those requirements could substantially harm access to abortion pills nationally and, naturally, in the various red states that have banned abortion clinics and procedures altogether.
Essentially, questioning by several justices was encapsulated by Justice Neil Gorsuch, one of the conservative justices, who asked whether that mismatch created a circumstance of turning a relatively small lawsuit about the conscience concerns of seven doctors into a “nationwide legislative assembly on FDA rule or any other federal action.”
Contentious Issues
Lawyers for the different sides (the anti-abortion alliance was represented by Erin Hawley, wife of Sen. Josh Hawley, R-Mo.) disagreed about whether any plaintiff bringing the suit had “standing” to bring the suit, and over whether existing law and practice already provides an out for any individual doctors who do not feel it morally right to take part in any abortion, even under emergency conditions.
No decision is expected before summer, but as always, the questioning can provide clues about how the justices are defining the issues.
Along the way, we got a lot of hot air about the continuing abortion debate (including the argument that some abortions are “elective” from the anti-abortion side), some flimsy evidence about whether an increase in emergency room visits since 2021 has meant an increase in health safety concerns involving mifepristone (there is no such correlation), and glancing blows at whether the FDA was “infallible,” per a question from Justice Samuel Alito.
There were repeated references among the most conservative justices to application of the 1873 Comstock Act, meant to halt sending objectionable material through the mail.
Even for a court that seems not to like federal agency independence to set rules and practices, the questions in this case did not seem to pose a substantial danger for the FDA.
Relief and Remedy
Overall, the justices pressed on how grievances of a few anti-abortion doctors should result in a nationwide ban one way or another of mifepristone, one of two abortion pills usually used together.
Instead, several justices said, it would seem that their job was to assure that moral objections of individual doctors would be met — something already included in federal law and hospital practice.
The questions about standing and unclear remedies surely raise a new one: Why did this case have to get to the Supreme Court to ask about these? The answer, of course, is at the heart of the abortion question altogether in which some legislators who feel a moral obligation feel it their calling to impose their views on all,
As things stand, the appeals court ruling knocked down the original district court verdict for a nationwide ban into a question about whether to keep the requirements for in-person visits. The doctors’ group bringing this lawsuit generally argued that failure to restrict mifepristone was drawing emergency room visits that might require an anti-abortion doctor into performing one of several medical treatments lumped together as “abortion.”
Nevertheless, a decision could cut off prescriptions by telemedicine and distribution of pills through the mail. The decision could also call into question the FDA’s ability to approve and distribute other drugs.
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