WASHINGTON, March 26 — The US Supreme Court today began hearing arguments on whether to restrict access to the abortion pill as President Joe Biden’s administration fights to maintain broad access to the medication in a major case that thrusts reproductive rights back on the agenda of the justices in a presidential election year.
The Biden administration has appealed a lower court’s ruling that would limit how the medication, called mifepristone, is prescribed and distributed. Four medical associations and four doctors who oppose abortion brought the challenge to mifepristone in Texas.
The Food and Drug Administration’s (FDA) regulatory changes at risk in the case include allowing for medication abortions at up to 10 weeks of pregnancy instead of seven, and for mail delivery of the drug without a woman first seeing a clinician in-person.
Arguing for the administration, Solicitor General Elizabeth Prelogar told the justices that the plaintiffs lacked the proper legal standing to bring the challenge and asked them to “put an end to this case.” Prelogar said the plaintiffs failed to show, as necessary, that they have been harmed in a way that can be traced to the FDA.
The plaintiffs do not come “within 100 miles of the kinds of circumstances” needed to show legal injury, Prelogar said.
The plaintiffs have said their member doctors will be forced to violate their consciences because they will “often be called upon to treat abortion-drug complications” in emergency settings due to what they call the FDA’s unlawful actions.
Conservative Justice Samuel Alito, who authored the court’s 2022 ruling overturning its 1973 Roe v. Wade precedent that had recognized a constitutional right to abortion, challenged Prelogar to identify who could sue the FDA.
“Is there anyone who can sue and get a judicial ruling on what FDA did was lawful?” Alito asked. “Shouldn’t someone be able to challenge that in court? Who?”
Prelogar told the justices that the FDA’s actions were lawful.
“The agency relied on dozens of studies involving tens of thousands of women. Respondents don’t identify any evidence that the agency overlooked. They just disagree with the agency’s analysis of the data before it. But that doesn’t provide a license to authorise judicial second-guessing of the agency’s expert judgments,” Prelogar said.
The Justice Department has said these claimed harms rely on an impermissibly speculative chain of events - that other doctors would provide mifepristone to women who then experience a rare emergency and end up in the medical care of these plaintiffs.
Demonstrators gather
Hundreds of abortion-rights and anti-abortion demonstrators held raucous rallies in front of the court building. Some placed giant banners on the street declaring, “Our bodies, our freedom,” while others held signs stating, “Chemical abortion hurts women.”
The Supreme Court has a 6-3 conservative majority. After its 2022 abortion ruling, numerous states enacted Republican-backed measures banning or sharply restricting the procedure. Since then, medication abortion has become the most common method of ending pregnancies in the United States, now accounting for more than 60 per centof abortions.
Mifepristone is taken with another drug called misoprostol to perform medication abortions.
The justices are reviewing an August decision by the New Orleans-based 5th US Circuit Court of Appeals that faulted the FDA’s decisions in 2016 and 2021 to ease access to mifepristone. The case could put at risk the regulatory authority of the FDA over drug safety.
The FDA gave mifepristone regulatory approval in 2000. It has said that after decades of use by millions of women in the United States and around the world, mifepristone has proven “extremely safe,” and that “study after study” has shown that “serious adverse events are exceedingly rare.”
The plaintiffs, led by the Alliance for Hippocratic Medicine, contend that the FDA acted contrary to its mandate to ensure medications are safe in easing the restrictions on mifepristone, violating a federal law governing the actions of regulatory agencies.
Biden, seeking a second term in office in the November 5 US election, is an outspoken advocate for abortion rights. He and his fellow Democrats have sought to make abortion rights a central theme against Republicans ahead of the election.
The plaintiffs in 2022 challenged the FDA’s actions approving and widening access to mifepristone. Texas-based US District Judge Matthew Kacsmaryk broadly sided with them in a 2023 decision that would have effectively pulled the drug off the market, though the 5th Circuit’s decision did not go that far.
The 5th Circuit’s ruling remains on hold pending the Supreme Court’s review. A ruling is expected by the end of June. — Reuters
