That increase in accessibility is a major reason why mifepristone has become a prime target for anti-abortion groups after the Roe ruling.
Who brought this case?
The plaintiffs — the Alliance for Hippocratic Medicine — want to block or limit the use of mifepristone.
The group of anti-abortion medical associations,
founded months after the Roe ruling, claims the drug is dangerous. It filed a lawsuit in Texas saying the FDA erred in approving the drug in 2000. To support its argument, the group cited two specific studies (out of five
referred to in this case) that claim abortion pills increase emergency room visits and the risk of hospitalization. The scientific journal that published the studies has since
retracted them.
Still, those studies were cited as evidence in the
Texas court ruling that paved the way to the case before the Supreme Court. Under that ruling, the federal judge — a Trump appointee —
suspended FDA approval of the drug, saying the agency “acquiesced on its legitimate safety concerns.”
The decision was notable because there’s no legal precedent for a single judge to override the FDA’s decision to approve a drug.
In the case before the Supreme Court, the argument focuses on the FDA’s efforts to broaden access to the abortion drugs. The alliance argues that the FDA pulled back on “crucial safeguards” that “could have prevented many of these emergency events.”
What the drugmaker says
Pointing to the retracted studies used by the plaintiffs, the lawyer representing Danco, mifepristone’s manufacturer, said she had “significant concerns” about justices parsing medical and scientific studies.
“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,” Jessica Ellsworth said.
The federal government noted that medical complications are rare. (Just how rare?
A 2015 study, cited by medical organizations as part of the case, found that the rate of major complications — such as excessive blood loss and hospitalization — among patients who had medication abortions was about 0.3 percent. That study included more than 54,000 abortions.)
One key question: Can the anti-abortion doctors sue?
The plaintiffs’ lawyers were asked a fundamental legal question in oral arguments: Do the anti-abortion doctors have standing to sue?
The issue of standing, or the right to challenge the conduct of another party, was repeatedly raised in Tuesday’s arguments.
Justice Ketanji Brown Jackson said there was a “significant mismatch” between what the plaintiffs say has been their experience, and the remedy they’re seeking in the case.
The plaintiffs claim that while they oppose abortion, they
have “no choice” but to treat patients who have come to emergency facilities with medical complications from the abortion drugs.
The justice said these medical professionals allege an injury of conscience, as in, they’re being forced to participate in a medical procedure that they object to.
The “obvious, commonsense remedy,” Jackson added, would be an exemption that allowed them to opt out of providing that care, rather than an order that prevents
anyone from having access to the drugs.
This exemption already exists in federal law, Jackson said, adding that the plaintiffs are asking for something more.
Solicitor General Elizabeth Prelogar echoed the idea that the plaintiffs’ objections can already be remedied with a federal statute.
Prelogar said the plaintiffs don’t “come within 100 miles” of having the legal right to sue.
Justice Neil Gorsuch, commenting on the lawsuit, said it is “a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on FDA rule or any other federal government action.”
The bottom line: If the Supreme Court ultimately rules that the anti-abortion plaintiffs don’t have standing to sue, the justices could dismiss the case without addressing the merits.
What’s next: A ruling is expected as early as late June. There’s also a
second abortion-related case on the Supreme Court’s docket that involves medical exceptions to abortion bans.
