WASHINGTON — The U.S. Supreme Court on Tuesday weighed in on the future of access to abortion drugs in the United States. Several justices expressed skepticism as anti-abortion groups argued that the employ of pharmaceutical drugs should be returned to its pre-2016 status.
Attorney General Elizabeth Prelogar, speaking for the federal government, told the Conservative-majority court that the restrictions would not be necessary because of numerous credible studies showing mifepristone is safe and sound and effective.
Prelogar also argued that existing federal conscience protections protect doctors and other health care workers who do not want to participate in performing elective abortions or treating complications that can sometimes occur as a result of medication abortions.
“Only an extremely small number of women suffer serious complications that could necessitate urgent treatment,” Prelogar said. “It’s speculative that any of these women would seek care from two specific doctors who claimed to have conscience injuries. And even if they did, federal conscience protections would protect doctors from being injured.”
Prelogar said there was no way to connect the concerns of two anti-abortion doctors (cited in the case led by Alliance Defending Freedom) about treating patients with complications after medication abortions to the changes approved by the Food and Drug Administration in 2016 and 2021 that were at the center of the Supreme Court case.
Prelogar also said the anti-abortion legal group that filed the original lawsuit found no instance in which a doctor or health care provider opposed to abortion invoked conscience protections and then had them violated.
Medical abortion involves mifepristone as the first drug and misoprostol as the second. The two-drug regimen accounted for about 63% of abortions in the United States in 2023, according to report from the Guttmacher Institute.
Questions about broad changes in access
Justices Amy Coney Barrett and Neil Gorsuch — appointed to the court by former President Donald Trump — as well as Ketanji Brown Jackson, appointed by President Joe Biden — were among the court members who specifically asked why conscience protections would or would not be an adequate remedy for the concerns of anti-abortion doctors about medication abortion.
“I’m concerned that in this case there’s a significant discrepancy between the alleged injury and the remedy sought,” Jackson said. “The obvious, common-sense remedy would be to provide them with a waiver so that they don’t have to participate in this procedure.”
However, as Jackson noted, anti-abortion doctors have been pushing for changes to access to mifepristone for everyone in the United States.
“I guess I’m just trying to understand how they could possibly have the right to do that given the injuries they allegedly suffered,” Jackson said.
Gorsuch also expressed some criticism of the anti-abortion case, saying, “We have before us a handful of individuals who have invoked the conscience clause.”
“Normally, we would allow them to be addressed through equitable means,” Gorsuch said. “Recently — and I think Justice Jackson is alluding to this — we have had what you might call a rash of blanket injunctions or vacancies.”
“And this case seems like a perfect example of how a small lawsuit can be turned into a national legislative assembly on FDA regulation or any other action of the federal government,” Gorsuch said.
Prelogar acknowledged there was a “profound discrepancy,” although Erin Morrow Hawley argued on behalf of Alliance Defending Freedom and anti-abortion doctors that conscience protections were not sufficient.
“These are emergencies,” Hawley said. “The doctors who respond don’t necessarily know until they get to the operating room whether it could be an abortion drug event — it could be a miscarriage, an ectopic pregnancy, an elective abortion.”
Doctors, Hawley said, “cannot waste precious moments” in such circumstances.
The verdict will be issued this year
The Supreme Court’s opinion in Food and Drug Administration v. Alliance for Hippocratic Medicine is likely to be released early this summer, amid a fierce campaign for control of the White House and Congress in which Democrats are emphasizing the importance of reproductive rights.
The ruling comes about two years after the Supreme Court struck down a constitutional right to abortion that it first recognized in the 1973 Roe v. Wade ruling and upheld in a 1992 Casey v. Planned Parenthood ruling.
Restoring the employ of mifepristone, one of two pharmaceuticals used in medication abortions, to its status prior to the FDA’s 2016 changes would lead to significant changes for doctors and patients:
- Mifepristone will be approved for employ up to the seventh week of pregnancy, whereas the current requirement is 10 weeks.
- Patients had to return to their doctors for three more visits to complete the medical abortion process.
- Medicines could no longer be sent to patients by post.
- Only physicians will be able to prescribe mifepristone, which will prevent qualified healthcare workers such as physician assistants and nurses from prescribing the drug.
The Food and Drug Administration (FDA) originally approved mifepristone in 2000, then updated its prescribing guidelines in 2016 and then again during the COVID-19 pandemic.
Several major medical organizations, including the American College of Obstetricians and Gynecologists, the American Medical Association, and the Society for Maternal-Fetal Medicine, have written in tiny to the Supreme Court before oral arguments that “the focus on the use of mifepristone to induce abortion overlooks how essential it is to the safe and effective treatment of miscarriage or early miscarriage.”
“Miscarriage is common,” the medical organizations wrote. “Of the approximately 5.5 million pregnancies that are estimated to occur in the United States each year, between 10% and 26% end in miscarriage. For the million or more patients who experience early pregnancy loss each year, mifepristone is often a critical part of care.”
