Supreme Court sounds unlikely to limit medication abortion access

The attorney for the challengers, Erin M. Hawley, responded that the doctors could not rely on a narrower order that would give them conscience protection or some other exemption.

“Given the emergency nature it’s simply impractical to have an objection lodged prior to understanding what’s going on in that operating room,” Hawley said.

Justice Elena Kagan pointed out that hospitals typically handle conscience objections outside of emergency situations so that a doctor would not be assigned to that case in the first place.

Hawley, the wife of Sen. Josh Hawley, R-Mo., responded that system may not always work, and a doctor could have to decide between violating their conscience or wasting “precious moments scrubbing in and scrubbing out” in an emergency.

‘Profound harm’

Solicitor General Elizabeth B. Prelogar told the justices Tuesday the doctors and medical group challenging the FDA were using their conscience concerns to cause “profound harm” nationwide.

“It harms the pharmaceutical industry, which is sounding alarm bells in this case and saying that this would destabilize the system for approving and regulating drugs. And it harms women who need access to medication abortion under the conditions that FDA determined were safe and effective,” Prelogar said.

Danco Laboratories, the main manufacturer of mifepristone, also asked the justices to overturn the lower court ruling during oral arguments Tuesday. Jessica L. Ellsworth, the attorney for the company, argued that courts are not in a position to “second-guess” the FDA’s assessments of drug safety.

“FDA has many hundreds of pages of analysis and record of what the scientific data showed, and courts are just not in a position to parse through and second-guess that,” Ellsworth said.

Justice Samuel A. Alito Jr. pushed back the most on arguments that the suit should not be in court, saying that the Biden administration’s position could mean almost no one could challenge the agency’s safety determinations.

“Your argument is that it doesn’t matter if FDA flagrantly violated the law, didn’t do what it should have done and endangered the health of women, it’s just too bad, nobody can sue in court. There’s no remedy. The American people have no remedy for that?” Alito said.

Prelogar responded that people who were harmed by a drug could still sue the manufacturer, and other drug manufacturers could still sue the FDA.

Prelogar also said the doctors in the case would already be covered by federal conscience protections and would not be forced to participate in abortion care.

“Doctors shall not be required to perform or assist in any part of the health care program that would violate the doctors religious or moral beliefs, so it’s tied to the nature of the doctor’s beliefs rather than particular procedures,” Prelogar said.

The case is the first concerning abortion to reach the justices since the 2022 decision in Dobbs v. Jackson Women’s Health that overturned the constitutional right to an abortion. The challengers in the case convinced a trial court judge to suspend the FDA’s original 2000 approval of the drug as well as 2016 and 2021 alterations to prescription rules.

The 5th Circuit largely agreed with reversing the 2016 and 2021 restrictions. The Supreme Court ultimately agreed to hear the dispute over the loosening of the restrictions in 2016 and 2021, but not the challenge to the original 2000 approval.

The justices scheduled oral arguments next month in another abortion case, a dispute between Idaho and the Biden administration over the application of the state’s six-week abortion ban to emergency room care in the state.