WASHINGTON, D.C. (LifeSiteNews) – Oral arguments began Tuesday before the Supreme Court over the Biden administration relaxing federal rules about abortion pill distribution, with questioning so far indicating that pro-life attorneys may have an uphill battle convincing a majority of the justices their challenge has sufficient standing to proceed before delving into the more fundamental issues many hoped the case would resolve.
In December 2021, the Biden administration’s U.S. Food & Drug Administration (FDA) eliminated its requirement that abortion pills be dispensed in person, allowing pharmacists to instead send them through the mail as long as the recipient has a prescription. Alliance Defending Freedom sued on behalf of pro-life doctors and activists, securing in April 2023 a suspension of the policy from a U.S. District Court judge that was soon paused by the Supreme Court.
Last August, the U.S. 5th Circuit Court of Appeals issued a split ruling that sided with the FDA on some aspects of the case, including the abortion drug mifepristone’s original 2000 approval, but ultimately agreed to stay the agency’s more recent actions, meaning abortion pills could no longer be sent through the mail at least for the duration of the case, and that the cutoff point for taking abortion pills was moved back from 10 weeks’ gestation to seven weeks. The ruling also restored other conditions, including in-person office visits, prohibition of prescriptions by non-physicians, and mandatory reporting of non-fatal adverse events.
Last December, the nation’s highest court announced that it would review the August ruling, setting up a showdown that could potentially also impact the FDA’s original approval of mifepristone in 2000 and subsequent relaxation of the cutoff point for taking it from seven to 10 weeks.
For the first day of oral arguments, much of the justices’ questioning concerned whether the pro-life plaintiffs led by Alliance for Hippocratic Medicine (AHM) met the legal threshold for standing, specifically whether the doctors they represented had been directly harmed.
Trump-appointed Justices Brett Kavanaugh and Amy Coney Barrett pressed U.S. Solicitor General Elizabeth Prelogar on physicians’ conscience right not to personally participate in abortion, which Prelogar claimed the government recognizes. But the suit maintains that pro-life doctors are drawn into such situations when abortion pill recipients end up in their emergency rooms, giving them standing.
“You need a person to be able to come in and meet the courts’ regular standing requirements,” liberal Justice Elena Kagan said. “So who’s your person?”
Erin Hawley, the attorney representing AHM, answered by discussing two pro-life doctors “who object not only to taking the life of an unborn child during an elective abortion but also to ‘completing that process.’” which they argue they were forced to do “due to a life-threatening emergency” that came to their emergency room (…) Given the emergency nature, it’s simply impracticable to have a(n) objection lodged prior to understanding what’s going on in that operating room.”
The court’s two most conservative justices, Samuel Alito and Clarence Thomas, appeared most sympathetic to the pro-life standing argument. Thomas asked the solicitor general who would have standing to sue if not the plaintiffs, which she did not answer. Alito later followed up by noting that carrying the administration’s argument to its logical conclusions would render the FDA ultimately immune from scrutiny. At one point, Prelogar admitted, “I think that with respect to these regulatory changes, it’s hard to identify anyone who would have standing to sue,” prompting Alito to comment that “it’s just too bad, nobody can sue in court. There’d be no remedy. The American people have no remedy for that.”
Chief Justice John Roberts and Justice Neil Gorsuch, meanwhile, signaled that even if they find the pro-life doctors were wronged, they may be unwilling to rule more broadly against the nationwide application of the FDA’s rules.
“Normally, in Article III traditional equitable remedies, we issue and we say over and over again (to) provide a remedy sufficient to address the plaintiff’s asserted injuries and go no further,” Gorsuch said. “We have before us a handful of individuals who have asserted a conscience objection. Normally, we would allow equitable relief to address them. Recently, I think what Justice Jackson’s alluding to, we’ve had one might call it a rash of universal injunctions or vacaturs. And this case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule or any other federal government action.”
“Why can’t the court specify that this relief runs to precisely the parties before the court as opposed to looking to the agency in general and saying, ‘Agency, you can’t do this anywhere?’” Roberts asked.
Hawley responded that “that might be impracticable. If we’re thinking again about the emergency room situation, would Dr. Francis, again, have to know when she’s in the emergency room whether this is a miscarriage, an ectopic pregnancy, or an elective abortion? This is what she does day in and day out. And so it seems like to say that, that these would run to particular plaintiffs would be missing that the FDA regulations would still be in place and permit things like mail-order abortions. They would have removed the reporting requirements.”
Commenting on the case, Live Action founder Lila Rose issued a new statement Tuesday shifting the focus back to the core questions of the case, declaring that the “FDA, the government agency responsible for safeguarding public health, has let down women and girls by abandoning safety protocols and endorsing DIY abortions without ongoing medical oversight,” and that “Federal law currently prohibits sending abortion drugs through the mail. Because the FDA’s abortion-drug regulations are unlawful under the Comstock Act, the Supreme Court must stop the Biden Administration’s abortion pill trafficking.”
Easy access to and interstate distribution of abortion pills is one of the abortion lobby’s most potent tools for perpetuating abortion-on-demand post-Roe v. Wade, which they are aggressively pursuing regardless of the risks to the women they are supposedly serving.
A 2020 open letter from a coalition of pro-life groups to then-FDA Commissioner Stephen Hahn noted that the FDA’s own adverse reporting system says the “abortion pill has resulted in over 4,000 reported adverse events since 2000, including 24 maternal deaths. Adverse events are notoriously underreported to the FDA, and as of 2016, the FDA only requires abortion pill manufacturers to report maternal deaths.”
Pro-lifers warn that with the Biden administration completely eliminating requirements that abortion pills be taken in the presence of a medical professional, meaning without any medical supervision or medical support close by, those events are certain to increase.
“A November 2021 study by Charlotte Lozier Institute scholars appeared in the peer-reviewed journal Health Services Research and Managerial Epidemiology,” wrote Catholic University of America research associate Michael New. “They analyzed state Medicaid data of over 400,000 abortions from 17 states that fund elective abortions through their Medicaid programs. They found that the rate of abortion-pill-related emergency-room visits increased over 500 percent from 2002 through 2015. The rate of emergency-room visits for surgical abortions also increased during the same time period, but by a much smaller margin.’”
In November 2022, Operation Rescue reported that a net decrease of 36 abortion facilities in 2022 led to the lowest number in almost 50 years, yet the chemical abortion business “surged” with 64 percent of new facilities built last year specializing in dispensing mifepristone and misoprostol. Citing data from the pro-abortion Guttmacher Institute, STAT says mifepristone “accounts for roughly half of all abortions in the U.S.”
As for whether Tuesday’s questioning signals how the case will ultimately go, the current Supreme Court has delivered mixed results from a conservative perspective, despite six of its nine members having been appointed by Republican presidents, making its decisions difficult to predict.
The Court has given conservatives major victories on gun rights, environmental regulation, affirmative action, and most significantly abortion with the overturn of Roe, but it has also issued dismissive rulings on COVID-19 vaccine mandates, religious freedom, and LGBT ideology, to the point that Alito and Gorsuch have taken the rare step of criticizing Barrett and Kavanaugh for lacking the “fortitude” to resolve such issues.