Supreme Court justices appear skeptical of Texas doctors' challenge to abortion pills

The court heard from three attorneys on Tuesday, all women.

Jessica Ellsworth represented Danco, which makes and distributes mifepristone. Agreeing with the solicitor general, she said the case demonstrates why judges should not "second-guess" the FDA on matters of drug safety.

She noted that U.S. District Judge Matthew Kacsmaryk in Amarillo, Texas, who issued an injunction against the FDA, "relied on one study that was an analysis of anonymous blog posts" and cited other studies that have "since been retracted for lack of scientific rigor and for misleading presentations of data."

Erin M. Hawley, a lawyer for the conservative Christian group Alliance Defending Freedom, represented the antiabortion doctors. She said the fact that some women will encounter side effects from the medication and seek treatment at emergency rooms means that some doctors who oppose abortion will be forced to choose between "helping a woman with a life-threatening condition and violating their conscience."

But she spent most of her time fending off questions that challenged her clients' standing to sue.

The FDA approved the use of mifepristone in 2000, saying it was safe and effective when taken in combination with misoprostol. In 2016 and 2021, the agency loosened restrictions on how the pills may be prescribed.

The changes eliminated the requirement for an in-person doctor visit before the pills could be prescribed. The FDA said that years of experience indicated that the in-person visits were not needed to ensure safety. That change opened the way for telemedicine prescriptions, which are now used by many women in states that ban abortions.

The pills cause cramping and some bleeding and can sometimes require a doctor's intervention to complete the abortion. But the FDA says serious complications are "exceedingly rare," noting that more than 5 million women in the U.S. have used the medication since 2000.

More than a dozen major medical groups, led by the American College of Obstetricians & Gynecologists and the American Medical Assn., said in friend-of-the court briefs that two decades of studies have shown the drugs are safe.

The frequency of their use has made the drugs a target for antiabortion activists. Two years ago, shortly after the Dobbs ruling, a group of antiabortion doctors filed the lawsuit in Amarillo.

They sought a court order that would overturn the FDA's approval of the drugs. And they sought out a judge who would look favorably on their claim. Kacsmaryk, a Trump appointee who is the only federal judge based in Amarillo, "suspended" the FDA's approval of mifepristone and gave the government seven days to appeal his decision.

The U.S. 5th Circuit Court of Appeals in New Orleans partially reversed Kacsmaryk's ruling, deciding that it was too late to reverse the FDA's approval of the drug, but agreeing set aside the regulations the agency has adopted since 2016.

Biden administration lawyers appealed to the Supreme Court, and the justices voted to put the case on hold. Alito and fellow conservative Justice Clarence Thomas dissented from that initial decision.

The tenor of the court's response to Tuesday's arguments in FDA vs. Alliance for Hippocratic Medicine suggested that a majority of the justices will vote to reverse the 5th Circuit, with Thomas and Alito dissenting again.

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