Abortion drug access could be limited by Supreme Court − if the court decides anti-abortion doctors can, in fact, challenge the FDA

What is the federal government’s central argument against these claims?

Cahn: The government is stating that the FDA appropriately reviewed all of the evidence and its decision was appropriate.

Indeed, the attorney representing the mifepristone manufacturer, Jessica Ellsworth, pointed out that the studies cited by the challengers have either been discredited or withdrawn because they were unreliable.

Another critical issue, as U.S. Solicitor General Elizabeth Prelogar said to the justices today, is whether the organization challenging this ruling actually has legal standing – the right to sue – to bring a lawsuit against the FDA.

Why is the question of who can sue the FDA important here?

Suter: Under U.S. law, you cannot succeed in court every time you are unhappy. The Supreme Court has ruled that the Constitution requires parties who bring suit in federal court to have “standing.” This means parties have to show that they have been injured in some tangible way or threatened with such an injury by the acts that are the basis of the lawsuit. In this case, a group of doctors morally opposed to abortion are saying they have been injured. Their claim is that with the changes in the FDA’s regulation of mifepristone prescriptions, patients will come to them in the emergency room, requiring medical care that violates these religious beliefs and causes them stress.

The government’s response is that the FDA is not making them do anything, including prescribe these pills or treat these patients. And there are conscience laws that say if the treatment is against a health care provider’s beliefs, they do not need to provide that care. So the government asks: How are the doctors harmed here?

What is your impression from the justices, listening to these arguments?

Cahn: I was surprised by how much time the justices spent asking about legal standing and whether there was a direct enough connection between the plaintiffs and the FDA’s guidance.

What’s the potential impact of the court’s eventual ruling on this case?

Cahn: The court’s decision has implications for the whole FDA approval process as well as access to medication abortion, including through telehealth and the mail. If the court rules for the doctors challenging the FDA, mifepristone would still be available, but access to it would be severely limited because people would need an in-person visit before they could get it.

This article is republished from The Conversation, a nonprofit, independent news organization bringing you facts and trustworthy analysis to help you make sense of our complex world. It was written by: Naomi Cahn, University of Virginia and Sonia Suter, George Washington University

The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.