U.S. Supreme Court Abortion Pill Hearing: Takeaways | Abortion

The Supreme Court justices appeared to express skepticism about arguments made by a group of anti-abortion doctors in a case that could reshape the availability of medication abortion and undermine the authority of the Food and Drug Administration ( FDA) of the United States.

The Supreme Court heard oral arguments Tuesday in Alliance for Hippocratic Medicine v. FDA, the first abortion case to reach the Supreme Court since it overturned Roe v. Wade nearly two years ago.

The court will decide whether a group of anti-abortion doctors could force the agency to reverse FDA decisions from 2016 and 2021 that expanded access to a common abortion pill, mifepristone. The pill is typically used as part of dual therapy for medical abortions, which account for 63% of all abortions in the United States.

The justices will likely issue their decision by summer 2024, just months before the U.S. election in which abortion is expected to be a major issue.

Here are some key takeaways from Tuesday's hearing:

Even conservative judges expressed skepticism

Conservative justices hold a 6-3 majority. So while all liberal members of the courts seemed clearly dubious about the anti-abortion doctors' claims, at least two conservatives must join them to avoid a ruling in favor of the doctors anti-abortion.

Much of the debate focused on standing, or whether doctors had the right to sue in the first place, and whether the proposed remedy, reducing the FDA's authority to change the way a drug is prescribed, went far beyond what was necessary to protect a small group of people. doctors who can already invoke federal conscience protections if they do not wish to provide abortion care in cases of extremely rare complications related to mifepristone.

Justice Neil Gorsuch, one of the court's conservatives, said he did not know why the best solution was to overturn the FDA's decision. Was abandoning the FDA rules the equivalent of turning a small lawsuit into a national legislature over an FDA rule, or any other action by the federal government?

Justice Amy Coney Barrett also spent a lot of time confirming that federal conscience laws already protect anti-abortion doctors.

I just want to be clear: The federal government's position is that… these doctors would use the conscience protections provided by federal law? » she asked the US solicitor general, Elizabeth Prelogar, who represented the FDA.

Likewise, Justice Brett Kavanaugh sought reassurance. Under federal law, no doctor can be forced, against his or her conscience, to perform or assist in an abortion, correct? he asked Prelogar, who represented the FDA.

Prelogar said that was correct and that the government believed conscience laws provided broad coverage in this area.

The courts' liberal justices also appeared dubious, with Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, members of the courts' liberal wing, questioning the basis of the case.

Kagan asked Erin Hawley, the attorney for the Alliance for Hippocratic Medicine, if she thought the injuries she is trying to prove could be attributed to the 2016 and 2021 actions you are challenging. [that] these incidents are caused by the gradual increase in risk resulting from the actions of 2016 and 2021. Hawley told Kagan that the actions of 2016 and 2021, which among other things allowed mifepristone to be prescribed by telehealth and sent by mail , increased the risk of harm. The FDA found no significant safety concerns related to these changes.

Jackson then questioned why doctors needed such a broad remedy as undermining the FDA's authority and forcing the reversal of their reviews.

The case presents a significant disconnect, Jackson said, between the harm alleged and the relief sought… They say: Because we object to being forced to participate in this proceeding, we seek an order preventing anyone from having access to these medications at all. Jackson said she was trying to understand how they could be entitled to that, given the harm they alleged.

Oral debates highlighted the pharmaceutical industry's fears

Continually evaluating a drug's safety and effectiveness and adjusting its regulations based on this evidence are among the FDA's primary duties.

The pharmaceutical industry views this case as an existential threat, because if a court can overturn evidence-based prescription changes, what's stopping judges from analyzing the science from the bench, even if they don't? have no qualifications to do so?

Two separate exchanges highlighted these fears. First, Justice Samuel Alito, a conservative, questioned why the agency did not provide a more comprehensive comment on the increase in emergency room visits following telehealth prescriptions of mifepristone, which have been authorized by the FDA since 2021.

The increase in emergency room visits simply has no consequences? This doesn't even deserve a comment? Alito asked Prelogar.

To the researchers, this was an obvious example of an indirect measure: ER visits could indicate the possibility of adverse events, but could also indicate only a woman seeking reassurance, particularly regarding a medication. like mifepristone which causes bleeding. This is exactly the kind of complex analysis that the FDA considers every day when reviewing studies on drug safety and effectiveness.

Likewise, Jackson gave Dancos attorney Jessica Ellsworth some space to explain why pharmaceutical companies have lined up to support the FDA.

Drug companies are very concerned about judges analyzing science from the bench, Ellsworth said, because they rely on the FDA's gold standard review process.

You have a district court that, among other things, relied on a study that was an analysis of anonymous blog posts, Ellsworth said. Other studies have since been withdrawn due to lack of scientific rigor and misleading data.

It is precisely because judges are not experts in statistics and methodologies used for studies in clinical trials that the FDA has hundreds of pages of analyzes on file about what the scientific data has shown, and the courts are simply not able to analyze and support. Guess that, she said.

The most conservative judges want to talk about the Comstock Act

Alito and Clarence Thomas, who make up the court's most conservative faction, both cited the Comstock Act, an 1873 anti-obscenity law that prohibits the mailing of abortion-related materials.

Although parts of the law are technically still in force, the Comstock Act has long been considered an antique from another era in U.S. history, as past court rulings have narrowed its anti- obscenities and that Congress overturned its restrictions on contraception.

But now that Roe no longer guarantees a constitutional right to abortion, some anti-abortion activists say the Comstock Act should be enforced and have referenced it in anti-abortion litigation, including the mifepristone lawsuit.

How do you respond to an argument that shipping and advertising your product violates the Comstock Act? Thomas asked Ellsworth.

“I do not believe that this case offers the court the opportunity to rule on the scope of the law,” replied Ellsworth, after some exchanges.

Thomas may see this case as an invitation to do just that, as he has in the past taken the opportunity to write minority opinions with far-reaching arguments. In Roe, Thomas' opinion suggested that the court should reevaluate landmark cases establishing constitutional rights to same-sex marriage, same-sex intimacy, and contraception.

The Biden administration issued guidance stating that the Comstock Act only applies if someone intends to break the law. If fully implemented, as by future President Donald Trump, the Comstock Act would result in a de facto nationwide ban on abortion, legal experts said, because abortion clinics, providers and patients rely heavily on mail for equipment, medications and other materials that are fundamental to providing care.

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