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Supreme Court signals it is likely to reject a challenge to abortion pill access

The Biden administration is defending FDA decisions that lifted restrictions on mifepristone, including one that made it available by mail.
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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, both conservative and liberal, 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.

Justice Amy Coney Barrett, another conservative, asked similar questions.

Even if the court were to reach the merits and rule for the challengers, some justices questioned whether the scope of the lower court ruling was too broad by applying it nationwide instead of limiting it to the doctors who sued.

Conservative Justice Neil Gorsuch said the case was a "prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule."

The only justices who appeared eager to discuss whether the FDA acted unlawfully and hinted at sympathy for that argument were conservatives Clarence Thomas and Samuel Alito.

"Your argument here is that even if the FDA acted unlawfully, nobody can challenge that in court," Alito said in an exchange with Solicitor General Elizabeth Prelogar, who represents the FDA. He and Thomas both referred to the Comstock Act, a 19th century law that prohibited mailing drugs used for unlawful abortions.

Alito also wondered whether the FDA considered itself "infallible."

Different pockets of rallies formed outside the Supreme Court building beginning as early as 7:30 a.m. Most appeared to be in favor of abortion rights, chanting over megaphones, but smaller groups of people with signs protested “chemical abortions,” as well.

Mifepristone is used as part of a two-drug FDA-approved regimen for the majority of abortions nationwide.

The case is a major test for the conservative-majority court, which in 2022 overturned Roe v. Wade, the landmark ruling that established a woman's constitutional right to end her pregnancy.

The FDA has the backing of the pharmaceutical industry, which has warned that any second-guessing of the approval process by untrained federal judges could cause chaos and deter innovation.

Liberal Justice Ketanji Brown Jackson seized on that issue in a question directed at Jessica Ellsworth, a lawyer representing Danco, which makes the brand name version of the pill, Mifeprex.

"Do you think that courts have specialized scientific knowledge with respect to pharmaceuticals ... or do you have concerns about judges parsing medical and scientific studies?" she asked.

Ellsworth noted that there are other avenues for people to object to unsafe drugs, including suing pharmaceutical companies.

The oral argument comes almost a year after Texas-based U.S. District Judge Matthew Kacsmaryk issued a sweeping ruling that completely invalidated the FDA's approval of the pill, leading to panic among abortion-rights activists that it would be banned altogether.

The Supreme Court last April put that ruling on hold, meaning the pill remains widely available for now.

The New Orleans-based 5th U.S. Circuit Court of Appeals in August then narrowed Kacsmaryk's decision on appeal but left in place his ruling finding that the FDA's move to lift restrictions starting in 2016 was unlawful.

Both sides appealed to the Supreme Court. The court in December took up the Biden administration's appeal in defense of the later FDA decisions, but it opted against hearing the challenge to the original approval of mifepristone in 2000. That issue is therefore not before the justices.

The court is instead focusing on the later FDA action, including the initial 2021 decision that made it available by mail, which was finalized last year.

The court is also considering decisions in 2016 to extend the window in which mifepristone could be used to terminate pregnancies from seven weeks’ gestation to 10 weeks and reduce the number of in-person visits for patients from three to one. In another 2016 move, the FDA altered the dosing regimen, finding that a lower dose of mifepristone was sufficient.

The outcome of the case could have sweeping practical effects if access to the drug is restricted, with many states seeking to restrict abortion access in the wake of the Supreme Court's decision to overturn Roe v. Wade.

Abortion is effectively banned altogether in 14 states, according to the Guttmacher Institute, a research group that backs abortion rights.