What to know about today's hearing
- The Supreme Court heard a challenge to the Food and Drug Administration's decisions over the past several years to increase women's access to mifepristone, a drug used in medication abortions, including making it available by mail. Many of the justices appeared to be questioning whether abortion opponents would have standing to sue over the decisions.
- A Texas-based U.S. district judge invalidated the FDA's approval of the pill last year, but an appeals court narrowed the decision to include only actions the agency has taken since 2016. Because the Supreme Court is not reviewing the FDA's initial approval of the drug, the medication will remain available in some form.
- Fourteen states completely ban abortion, including medication abortion, according to the Guttmacher Institute, a research group that supports abortion rights, while several others prohibit delivering the abortion pill by mail and require patients to see a doctor in person before they can get a prescription for it.
- About two-thirds of abortions in the United States were carried out by use of the pill in 2023, the research group says.
Abortion providers react to Supreme Court hearing
Abortion providers responded to today's oral arguments by emphasizing the safety and effectiveness of mifepristone, stressing that reduced access to the drug could threaten public health.
“The very existence of this case puts every other FDA-approved medication at risk of being taken off the market or restricted for political reasons,” Alexis McGill Johnson, CEO of Planned Parenthood Federation of America, said in a statement.
Amy Hagstrom Miller, CEO of Whole Woman’s Health, an abortion provider with in-person clinics in four states, said her virtual clinic will continue to offer abortion pills by mail while the court considers the case.
“This cruel and baseless lawsuit is designed to intimidate and confuse Americans," Miller said in a statement. "This case is not about health and safety; it’s about power and control. Here is the truth: medication abortions are safe and effective.”
Evan Masingill, CEO of GenBioPro, the generic manufacturer of mifepristone, said Tuesday that the company “will continue to use every legal and regulatory avenue to protect access” to the drug.
New York attorney general speaks at rally for abortion pill access outside Supreme Court
New York Attorney General Letitia James joined abortion rights supporters during a protest outside the Supreme Court today.
Erin Hawley spotted outside of the Supreme Court near protesters
After delivering oral arguments before the Supreme Court, Erin Hawley was seen outside of the court near protesters, flanked by two bodyguards.
Supreme Court skeptical of effort to make abortion pill harder to obtain
WASHINGTON — The Supreme Court on Tuesday appeared likely to reject a challenge to the abortion pill mifepristone, with a number of justices indicating the lawsuit should be dismissed.
The court, which has a 6-3 conservative majority, heard oral arguments on the Biden administration’s appeal of lower court rulings that restricted women’s access to the pill, including its availability by mail.
But during the arguments, there was little discussion of whether the Food and Drug Administration’s decisions to lift restrictions on the drug were unlawful.
Instead, the justices focused on whether the group of anti-abortion doctors who brought the lawsuit even had legal standing to bring the claim. The plaintiffs, represented by the Alliance Defending Freedom, a conservative Christian legal group, argue that the FDA failed to adequately evaluate the drug’s safety risks.
But justices probed whether the doctors could show that they were directly injured merely because they object to abortion and could be required to give emergency room treatment to a woman suffering from serious side effects.
Several justices also noted that doctors who oppose abortion can already object based on their personal beliefs to assisting patients suffering from abortion-related side effects.
“Under federal law, no doctors can be forced against their consciences to perform or assist in an abortion, correct?” conservative Justice Brett Kavanaugh asked at one point.
Sen. Josh Hawley was in court for his wife's arguments
Sen. Josh Hawley was in attendance during his wife’s arguments on behalf of the Alliance for Hippocratic Medicine, which is suing the FDA.
The Republican senator from Missouri and his wife, both of whom graduated from Yale Law School, met while they clerked for Chief Justice John Roberts.
Jackson repeatedly asked about the deference courts should pay the FDA
In her questioning today, Jackson repeatedly asked iterations of whether courts owe any deference to the opinion of the expert agency concerning the safety and efficacy of drugs. In her response, Hawley said the defendants are not asking the court to second-guess FDA determinations at all, but rather to look at what the FDA has said.
After Jackson said she doesn’t understand how that scope of review is not, in fact, second-guessing the FDA, Hawley pushed back, saying she didn't think that’s an accurate portrayal and that the FDA’s statements in 2016 and 2021 were “arbitrary.”
Danco lawyer pushes back against justices citing debunked scientific studies
After being questioned by Justice Alito about the potential adverse consequences of mifepristone, Ellsworth said she had “significant concerns” about justices parsing medical and scientific studies.
Ellsworth said the Texas district court’s ruling relied on an analysis of anonymous blog posts and another set of studies that have since been retracted.
“Those sorts of errors can infect judicial analyses precisely because judges are not — they are not experts in statistics, they are not experts in the methodology used for scientific studies for clinical trials,” Ellsworth said.
The district court’s ruling cited statistics from an analysis of anonymous posts about negative abortion experiences on the website Abortion Changes You. The study’s co-author is a senior research associate at the Charlotte Lozier Institute, an anti-abortion group.
The ruling also cited two studies supported by the Charlotte Lozier Institute that claimed to find harms associated with abortion. The publisher, Sage Perspectives, retracted both studies after an independent review found the conclusions weren’t valid.
Oral arguments conclude
Today's oral arguments before the Supreme Court have ended.
Prelogar offers a rebuttal to Hawley
The solicitor general is offering a rebuttal to Hawley's argument, arguing that the doctors she represents don't have any clear harms and so the standing argument is speculative.
She also said the doctors group that Hawley represents doesn't have organizational standing and the remedy is overly broad.
Thomas, Alito bring back focus on Comstock Act
Thomas and Alito are questioning Hawley about the relevance of the Comstock Act.