Supreme Court justices skeptical of challenge to abortion pills

The Supreme Court justices sounded skeptical Tuesday about imposing new limits on the dispensing of abortion medication through pharmacies or by mail.

The justices, both conservatives and liberals, questioned why a group of antiabortion doctors have legal standing to challenge the dispensing rules set by the Food & Drug Administration. That issue, not the safety of mifepristone, dominated the two-hour argument — likely a sign of what the justices thought about the case.

“The court should put an end to this case,” said Solicitor Gen. Elizabeth B. Prelogar, representing the Biden administration. A handful of doctors who oppose all abortions do not have the right to challenge the legal use of the drugs by millions of women, she argued.

If the court were to uphold new restrictions on dispensing the pills, the impact would be felt by women in California and other blue states where abortion is legal. Conversely, a ruling that the antiabortion doctors in this case lacked the legal standing to sue could forestall other challenges.

A decision by the court is expected later this spring, most likely toward the end of June when its current session ends.

In Tuesday’s argument, only Justice Samuel A. Alito Jr. directly disputed the suggestion that the antiabortion claim should be thrown out. “Isn’t there anyone who could challenge this?” he asked.

Conservative Justices Neil M. Gorsuch and Amy Coney Barrett asked only procedural questions.

Gorsuch questioned why a lawsuit brought in west Texas on behalf of a few antiabortion doctors should lead to a nationwide injunction.

The case appears to be “a prime example of turning what could be a small lawsuit into a nationwide legislative assembly,” Gorsuch said.

Barrett said the law already offers “conscience protections” to shield doctors who have moral objections to abortions from being required to perform them. She said she saw no evidence that those protections were not being honored.

Abortion pills, typically a combination of mifepristone and a second drug, misoprostol, are now the most common method of ending a pregnancy in the U.S. Use of the drugs has grown significantly in the two years since the court’s Dobbs decision, which struck down the constitutional right to abortion.

The challenge to their legality posed a test for the court’s antiabortion conservatives. In the Dobbs case, they said the regulation of abortion should be decided by states and elected officials, not judges.

In their questions on Tuesday, Gorsuch and Barrett sounded a similar theme, questioning why judges in Texas had taken on the role of regulating abortion medication.

The FDA approved the use of mifepristone in 2000 and said it was safe and effective when taken in combination with misoprostol. In 2016 and then again in 2021, the FDA loosened restrictions on how the drug may be prescribed.

The changes eliminated the requirement for an in-person doctor visit before the pills could be prescribed. The FDA said that years of experience indicated that the in-person visits were not needed to ensure safety. That change opened the way for telemedicine prescriptions which are now used by many women in states that ban abortions.

The pills cause cramping and some bleeding and can sometimes require a doctor’s intervention to complete the abortion. But the FDA says serious complications are “exceedingly rare,” noting that more than 5 million women in the U.S. have used the medication since 2000.

More than a dozen major medical groups, led by the American College of Obstetricians & Gynecologists and the American Medical Assn., said in friend-of-the court briefs that two decades of studies have shown the drugs are safe.

The frequency of their use has made the drugs a target for antiabortion activists. Two years ago, shortly after the Dobbs ruling, a group of antiabortion doctors filed a suit in Amarillo, Texas.

They sought a court order that would overturn the FDA’s approval of the drugs. And they sought out a judge who would look favorably on their claim. U.S. District Judge Matthew Kacsmaryk, a Trump appointee, who is the only federal judge based in Amarillo, “suspended” FDA’s approval of mifepristone and gave the government seven days to appeal his decision.

The U.S. 5th Circuit Court of Appeals decided it was too late to reverse the FDA’s approval of the drug, but it agreed to set aside the regulations the FDA has adopted since 2016.

Biden administration lawyers appealed to the Supreme Court, and the justices voted to put the case on hold. Justices Alito and Clarence Thomas dissented.

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