Key takeaways from Supreme Court abortion pill arguments

On Tuesday, abortion rights returned to the Supreme Court for the first time since conservative justices overturned Roe v. Wade in 2022.

The case centered on whether federal regulators overstepped their authority by relaxing regulations to make it easier to obtain mifepristone, a widely available drug used in medical abortions. .

A decision is expected later this summer and could have a major impact on the 2024 presidential election. Democrats are using abortion as a cudgel against Republicans and former President Trump, who appointed three of the justices who voted to end Roe.

Here are some important points:

Most questions focused on rights to sue, not FDA

One of the central issues before the court was whether the groups suing to reverse the Food and Drug Administration’s (FDA) action against mifepristone had the right to do so.

Attorney General Elizabeth Preloger, advocating for the federal government, repeatedly pointed out that opponents have not referred doctors who “face imminent harm” from expanding access to mifepristone.

When asked by Judge Clarence Thomas who has the standing to sue the FDA over drugs, Preloger said, doctors and patients who want more access to drugs, or those who want FDA approval because of competition. He gave the example of a competing pharmaceutical company that he believes will cause losses.

Erin Hawley, speaking on behalf of the Christian law advocacy group Alliance Defending Freedom, said the FDA relies on obstetrics and gynecology hospital workers to “care for women harmed by abortion pills.” He said that his position was satisfied.

She claims that government agencies are outsourcing abortion care to doctors, who are sometimes forced to “choose between helping women whose lives are threatened or violating their conscience.” He claimed that there was.

But Justices Amy Coney Barrett and Elena Kagan noted that neither of the two doctors at the center of the lawsuit appeared to have performed abortions against their conscience, and Justice Kagan questioned why neither doctor performed the abortions. He also questioned whether it appeared that he had not expressed a conscience objection to the hospital.

One of the doctors said in an affidavit that her partner was “forced” to undergo dilatation and curettage (removal of living tissue from the uterus), but Dr. Barrett said this was not the case, as in this case. He pointed out that this does not mean that there is a viable embryo or fetus. abortion. If so, she said, the affidavit reads more like an objection of conscience than an actual injury.

Thomas and Alito seem interested in restoring the Comstock Act.

Both Thomas and Justice Samuel Alito repeatedly invoked the Comstock Act, a 151-year-old vice law that prohibits the mailing of “obscene” or “indecent” material.

Alito questioned why the FDA did not challenge the law in its decision to expand access to mifepristone by mail.

“This is a remarkable provision. It’s not an obscure part of a complex and ambiguous law. Everyone in this field knew about it,” Alito said.

The law hasn’t been enforced in more than a century, but anti-abortion activists and some Republican officials have looked to it as a way for a future Republican president to effectively ban abortion nationwide without the need for Congress. There is.

Thomas and Alito asked all three attorneys about Comstock on Tuesday. Some abortion rights groups and legal experts say the Biden administration could win if the court rules, but one or both of the justices could write an opinion focused on Comstock. , has expressed concern that it could provide legal protection to a future Republican administration.

Both Mr. Preloger and Jessica Ellsworth, an attorney for pharmaceutical company Danko, said Comstock is not an applicable company.

“I don’t think the Comstock provisions are within FDA’s purview,” Preloger said in response to a question from Alito.

“This law hasn’t been enforced for nearly 100 years, and I don’t think this case gives this court an opportunity to comment on the scope of this law,” Ellsworth said in response to a question from Thomas.

But Hawley said the law’s meaning is “pretty clear.”

“We do not believe this is a case in which the court gives the FDA the authority to ignore other federal laws,” Hawley said. “The Comstock Act states that drugs may not be mailed through the mail or common carrier.”

Conservatives attack demand for nationwide injunction

Chief Justice John Roberts and Justice Neil Gorsuch grilled Hawley about the nationwide relief the coalition had sought.

“Rather than looking at the agency in general and saying this relief is not available everywhere, why can’t the court identify exactly which parties this relief applies to?” Roberts asked. .

Hawley said such a finding was unrealistic, but before she could finish her explanation, Gorsuch interjected, saying the nationwide relief was equivalent to a “universal injunction” adopted by lower courts. , which has never been adopted by the Supreme Court.

“We have a small number of people before us who have asserted objections of conscience,” Gorsuch said. “This case appears to be a classic example of taking what could have been a small case to the national legislature regarding FDA regulations and other government actions.”

The Biden administration has argued that there is no possibility for targeted relief because plaintiffs are suing the FDA, rather than, for example, forcing hospitals to perform procedures that violate a doctor’s conscience.

“Therefore, the only way to provide relief under this theory of injury is to grant this type of national relief, which will ultimately change the terms of use of this drug for all women worldwide. “We’re going to require that,” Preloger said.

A new abortion case is on the horizon.

In multiple cases, officials referred to another abortion case that will be in court next month. The case centers on Idaho’s challenge to a federal law that requires doctors to perform abortions in emergency situations.

The Biden administration argues that the federal Emergency Medical Labor Act (EMTALA) requires doctors to provide life-saving or health-saving medical care, including abortions, in emergency situations.

Hawley argued on Tuesday that the government is “unable to make the case” about whether doctors have the right to object to providing treatment on religious grounds.

She argues that in the mifepristone case, the administration should simply appeal to conscience-based objections and insist that doctors not provide certain treatments, rather than trying to restrict abortion drugs nationwide. He pointed out that he did.

But in the case of Idaho, Hawley said, the government said EMTALA requires doctors not to turn away patients.

Preloger said the government does not believe EMTALA overrides individual physicians’ conscience objections. Although this imposes obligations on hospitals, it does not override the protection of doctors’ conscience.