US Supreme Court appears skeptical of arguments against abortion drug mifepristone | Abortion

The Supreme Court appeared skeptical Tuesday of arguments made by anti-abortion doctors asking it to reduce the availability of mifepristone, a drug typically used in medical abortion in the United States. The arguments were part of the first major abortion case to reach the justices since a 6-3 majority ruled in 2022 to overturn Roe v Wade and end the nation's right to abortion.

The right-wing groups that filed the suit argued that judges should overturn steps taken since 2016 by the Food and Drug Administration (FDA) to increase the availability of drugs. A ruling favoring anti-abortion doctors would apply nationwide, including in states that protect access to abortion, and would likely make access to the drug more difficult.

Medical abortion now accounts for nearly two-thirds of abortions performed in the United States.

Much of Tuesday's debate centered on whether the anti-abortion doctors who sued the FDA, a coalition known as the Alliance for Hippocratic Medicine, have standing or the right to bring the matter in the first place. Doctors say they will be harmed if they have to treat women with complications from mifepristone, an argument the Biden administration, which appealed the case in court, has rejected as too speculative .

U.S. Solicitor General Elizabeth Prelogar, who defended the FDA, argued that the doctors are not within 100 miles of having the legal right to bring the case, arguing that their case rests on a long chain of distant hazards. Under their argument, Prelogar said, a woman would have to face complications from a medical abortion so severe that she would need emergency care at a hospital, an unlikely scenario, given the proven safety record of mifepristone, and would then find herself under the care of an anti-abortion doctor who was somehow forced to care for her in such a way that it violated the doctor's conscience.

A number of justices, even those who ruled in favor of overturning Roe two years ago, seemed skeptical that doctors met the threshold required to establish standing. Justices Amy Coney Barrett and Brett Kavanaugh appeared to seek assurance that doctors represented by the Alliance for Hippocratic Medicine were already covered by laws that protect doctors from being forced to undertake cases that violate their conscience.

Justice Neil Gorsuch appeared to express concern about the sweeping implications of the doctor's request to the court. This case appears to be a prime example of turning what might be a small lawsuit into a national legislature over an FDA rule or any other federal government rule, he said.

The Supreme Court has consistently rejected arguments based on such potential harm. However, Justice Clarence Thomas raised the possibility that the courts' admissibility thresholds may be too strict.

Fellow conservative Samuel Alito also seemed incredulous at Prelogar's argument. Is there anyone who can file a lawsuit and get a legal ruling on the legality of what the FDA did? He asked. Shouldn't someone be able to challenge this in court?

Since Roe fell in June 2022, more than a dozen states have banned abortion. The result was legal and medical chaos. Dozens of women said they were denied medically necessary abortions. Abortion clinics in states that still allow abortion are overwhelmed by the flood of patients fleeing banned states. More than 1 million abortions were performed in the United States in 2023, a record.

The availability of medical abortions, which are typically performed using mifepristone as well as another drug called misoprostol, has helped soften the impact of these bans. Telehealth medical abortions, authorized by the FDA since the pandemic, have helped ease some of the burden on abortion clinics; The protection laws, passed in a handful of states, have even allowed providers to offer telehealth abortions to people living in states that ban abortion.

But the accessibility of medication abortion also made it the next target of the anti-abortion movement after Roe was overturned. In 2022, the Alliance for Hippocratic Medicine challenged the FDA's approval of mifepristone in 2000. The group, which includes anti-abortion doctors and is championed by the powerful Christian law firm Alliance Defending Freedom, argued that the FDA had overstepped its authority and that mifepristone was not safe. (More than 100 studies have concluded that mifepristone can be used safely to terminate a pregnancy.)

A federal judge ruled in favor of the Alliance for Hippocratic Medicine, a ruling that could have taken mifepristone off the market entirely. But an appeals court narrowed that decision, ruling it was too late to challenge mifepristone's initial approval in 2000.

Instead, the appeals court decided to reverse subsequent actions taken by the FDA that expanded access to mifepristone, including removing the requirement that abortion providers dispense mifepristone in person. A recent analysis found that 16% of all abortions in the United States are facilitated through telehealth.

The availability of mifepristones remained unchanged as the litigation progressed.

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During oral arguments, Thomas and Alito also raised the specter of the Comstock Act, a 19th-century anti-vice law that prohibits the mailing of abortion-related materials. Long considered a relic, the Comstock Act has now seen a surge of post-Roe support among anti-abortion activists who believe it is the key to a de facto nationwide ban on abortion. .

How do you respond to an argument that shipping and advertising your product violates the Comstock Act? Thomas asked Jessica Ellsworth, an attorney for Danco Laboratories, a manufacturer of mifepristone.

After some back and forth, Ellsworth told Thomas: This law has not been imposed for almost 100 years and I do not believe this case presents an opportunity for the court to rule on the scope of the law.

Regardless of the Supreme Court's decision, Americans will still be able to order mifepristone online from providers who help people manage their own abortions. A study released Monday finds that self-managed abortions have skyrocketed since the fall of Roe.

Outrage over the overturning of Roe has made abortion a key election issue, as most Americans support at least some degree of access to abortion. Voters in several states, including conservative strongholds, voted in ballot initiatives in favor of abortion rights; About a dozen states are now expected to put abortion-related ballot measures before voters in November. Democrats hope this issue will boost turnout for their candidates, including Joe Biden.

The Supreme Court is expected to issue its decision in the mifepristone case by the summer, just months before the 2024 election.

The consequences of this case could go well beyond abortion. If the justices greenlight attempts by ideological groups to challenge the FDA's authority, the agency's regulation of all kinds of drugs such as contraception and vaccines could be challenged in court.

Ellsworth, Danco's lawyer, argued that the doctors' argument in this case is so inflexible that it would upend not only mifepristone but virtually all drug approvals.

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