WASHINGTON (CN) — A challenge to a popular abortion pill fell flat at the Supreme Court Tuesday as the justices appeared unconvinced that anti-abortion doctors had been harmed by pills they do not prescribe.
“At the very least, to be able to say this happened to them in the past — I don’t think you have it for either one of those doctors,” Justice Elena Kagan said.
Kagan probed doctor testimonies cited by an anti-abortion group that supposedly showed how the abortion pill harmed individual doctors. The Obama appointee and nearly all of her colleagues doubted that these accounts demonstrated actual harm that could be connected to the Food and Drug Administration’s mifepristone approvals.
The FDA approved mifepristone over two decades ago as part of a two-drug regime to end early-stage pregnancies. The government and leading medical groups say mifepristone is extremely safe, comparing it to drugs like penicillin and Viagra.
Anti-abortion doctors, however, claim the FDA has not kept accurate data on mifepristone’s adverse effects, leaving emergency room doctors to treat a flood of complications.
The Alliance for Hippocratic Medicine, which brought the suit on behalf of the doctors, said they may have to treat one of the many women to take mifepristone if they have a rare, adverse reaction to the drug and have to come into an emergency room. The group said treating any of these patients would violate the doctors’ beliefs and cause them emotional harm.
Kagan described that setup as probabilistic. Justice Amy Coney Barrett likewise doubted any of the association’s doctors had been forced by side effects of mifepristone to participate in an abortion that was necessary.
“At least to me, these affidavits do read more like conscience objections strictly to participating in abortions,” said Barrett, a Trump appointee.
The government said federal law already protects conscientious objections; hospitals must respect medical professionals’ beliefs and can't force them to perform any procedure they disagree with.
It was telling, U.S. Solicitor General Elizabeth Prelogar argued, that the association could not point to any one declaration that proved mifepristone led to their claimed injuries.
“The fact that they don’t have a doctor that is willing to submit that sort of sworn declaration in court, I think, demonstrates that the past harm hasn’t happened," Prelogar said. "And the reason for that is it is so speculative, and turns on so many links in the chain that would have to occur."
Justice Ketanji Brown said even if the organization could show its doctors had experienced these harms, limiting mifepristone access nationwide wouldn’t be the appropriate remedy.
The Biden-appointed judge said the common sense solution to this lawsuit would be to provide the doctors with an exemption from performing the procedures. Instead, Jackson said, the association was asking for additional relief that does not match its injuries.
“They’re saying because we object to being forced to participate in this procedure, we’re seeking an order preventing anyone from having access to these drugs at all,” Jackson said.
Justice Neil Gorsuch, a Trump appointee, also expressed concern about this relief. Normally, in a case that involves a handful of people claiming conscientious objections like this one, the court would offer tailored relief. But a rash of universal injunctions from lower courts in this case and others have turned small lawsuits into nationwide assemblies.
“I went back and looked, and there are exactly zero universal injunctions that were issued during Franklin Delano Roosevelt’s 12 years in office — pretty consequential ones,” Gorsuch said. “Over the last four years or so, the number is something like 60, maybe more than that.”
Gorsuch said the doctors were asking the court to extend a relatively new remedy that it has never adopted itself.
Medication abortions have become the leading abortion procedure since the Supreme Court overturned Roe v. Wade almost two years ago. The FDA originally approved the drug in 2000, but in recent years the agency has expanded mifepristone’s use. In 2016, it allowed non-physicians to prescribe the medication and extended the drug's use further into pregnancy.
Patients were forced to schedule three doctor visits to take mifepristone under the 2000 approval but the agency has since relaxed the requirement: In 2016, the agency said only one visit was necessary and in 2021, the FDA said telehealth consultations were permissible.
A federal judge revoked all of mifepristone’s approvals based on the association’s claims. The conservative Fifth Circuit then limited the ruling to challenge only the 2016 and the 2021 approvals. The Supreme Court will decide if the appeals court ruling can stand.
During Tuesday's arguments, the Alliance for Hippocratic Medicine pushed back on the idea that its doctors were not harmed by mifepristone. Erin Hawley, an attorney with the Alliance for Defending Freedom, said the doctors had treated dozens of these complications and claimed there were tens of thousands of such complications that weren't monitored by the FDA.
“Nearly 650,000 women take mifepristone every year,” Hawley said. “It’s no surprise that respondents have experienced an increase in emergency room visits and indeed treated women suffering from abortion drug harms tens of thousands of times — excuse me, dozens of times that women have suffered tens of thousands to times.”
Justice Samuel Alito, a George W. Bush appointee, seemed to be one of the only justices who thought the doctors could sue the FDA for this injury. Alito questioned if there was anyone who could lawfully challenge mifepristone’s approval.
Alito also questioned why the FDA wouldn’t be bound by the 150-year-old Comstock Act, an anti-vice law that prohibits mailing abortion materials. “This is a prominent provision,” Alito said. “It's not some obscure subsection of a complicated obscure law. They knew about it.”
Justice Clarence Thomas, a George H.W. Bush appointee, also seemed interested in the law. He said the drugmaker, Danco Laboratories, would be bound by Comstock, preventing it from sending or advertising mifepristone by mail.
The court will issue a ruling by the end of June.
Follow @KelseyReichmann
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