Supreme Court Skeptical of Ban on Abortion Pill Mifepristone
WASHINGTON — A hearing Tuesday before the Supreme Court indicated a majority of the justices want to maintain women’s access to the abortion pill mifepristone despite objections from anti-abortion activists.
The doctors and organizations who sued argued the Food and Drug Administration was wrong in granting approval of the drug.
Mifepristone is used in nearly two-thirds of abortions in the United States.
A major issue in the appeal is whether the activists who sued had standing, which refers to the ability to prove they would suffer a harm if they lose their case.
Justice Elena Kagan challenged the attorney for the anti-abortion activists to name anyone who would suffer harm if FDA authorization for mifepristone continues.
“You need a person,” Kagan said. “So who’s your person?”
The doctors said their sense of morality would be offended caring for patients who took an abortion pill.
Justice Neil M. Gorsuch described the activists who sued as “a handful of individuals” who might lack credibility.
Their legal complaint was “a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule or any other federal government action,” Gorsuch said.
Part of their complaint centered on the ease of obtaining mifepristone. They said it could endanger women’s health without better medical supervision.
Doctors can prescribe it through telemedicine without needing to examine pregnant women. The drug can be shipped to them by mail, thereby allowing them to take the pills at home.
If the anti-abortion activists win, the Supreme Court justices questioned whether the ruling could impair the FDA’s authority to allow other drugs to be shipped by mail after a telemedicine visit with a doctor. A ruling is expected in June.
The FDA made mifepristone easier to obtain through regulatory actions in 2016 and 2021.
In 2022, the activists sued in a federal court in Amarillo, Texas, that has one judge for new cases. He was known for a history of anti-abortion rulings.
The judge, Matthew J. Kacsmaryk, issued a nationwide injunction against distribution of mifepristone.
The Fifth Circuit U.S. Court of Appeals, which is known for being one of the nation’s most conservative appellate courts, only partially overturned Kacsmaryk’s decision.
The appellate court said mifepristone should be legal but imposed broad restrictions on access to it.
The 5th Circuit ruled mifepristone could not legally be taken after seven weeks of pregnancy. It could not be mailed to patients and it must be prescribed only by a doctor.
The restrictions modified the previous rule, which said medication abortion was available through the first 10 weeks of pregnancy.
The Supreme Court, with encouragement from the Biden administration, put the restrictions on hold until it makes a final ruling.
U.S. Solicitor General Elizabeth B. Prelogar argued for plaintiffs who want to continue easy access to mifepristone.
She said the anti-abortion activists should not be granted a right to sue because they represent “only seven identified doctors, whose declarations span just a few dozen pages and are often vague or conclusory.”
A ban on mifepristone would “create great harm for women across the nation,” Prelogar told the Supreme Court.
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