Supreme Court appears skeptical of arguments to restrict abortion pill access

The Supreme Court as composed June 30, 2022 to present. Front row, left to right: Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Samuel A. Alito, Jr., and Associate Justice Elena Kagan. Back row, left to right: Associate Justice Amy Coney Barrett, Associate Justice Neil M. Gorsuch, Associate Justice Brett M. Kavanaugh, and Associate Justice Ketanji Brown Jackson. (Photo Credit: Fred Schilling, The Supreme Court of the U.S.)

Hearing oral arguments on March 26 in FDA v. Alliance for Hippocratic Medicine, the U.S. Supreme Court appeared skeptical of arguments to curtail access to the abortion pill mifepristone.

A decision in the case is expected to come in June. The court’s most conservative justices, Samuel Alito and Clarence Thomas, signaled their support for the anti-abortion plaintiffs, who seek to prohibit telemedicine prescriptions and distribution of the pill by mail.

A ruling in their favor could also undermine the ability of the U.S. Food and Drug Administration to exercise its expert judgment on the safety and efficacy of medications without interference by courts — which, by and large, are not qualified to adjudicate these questions.

Such concerns were relayed even by justices like Neil Gorsuch, who was appointed by former President Donald Trump, and who warned on Tuesday that the case might stand as “a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an F.D.A. rule or any other federal government action.”

Mifepristone was first approved in the year 2000. The drug, taken together with misoprostol, is the most commonly used method of terminating pregnancies in the U.S.

The justices’ questions also showed their skepticism toward plaintiffs’ arguments that concrete harms will result if the medication remains widely available. For instance, Gorsuch and Justice Ketanji Brown Jackson noted healthcare providers are already permitted to opt out of providing care to which they have moral objections.

Even if the Supreme Court rules in favor of the government, preserving access to mifepristone including through telemedicine and mail-order prescriptions, more than a dozen conservative states have banned the drug and implemented near-total abortion bans pursuant to the court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization.

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