The topic of abortion rights returned to the Supreme Court on Tuesday, marking the first time since conservative judges overturned Roe v. Wade in 2022.
The case challenged whether federal regulators went too far in relaxing restrictions to make mifepristone, a commonly used drug in medication abortions, more accessible.
A ruling is expected later this summer and could greatly impact the 2024 presidential election. Democrats are using abortion as a weapon against Republicans and former President Trump, who appointed three of the judges who supported ending Roe.
Here are some key points to consider:
Most inquiries were about the right to bring lawsuits, not the FDA
One of the main questions before the court was whether the groups suing to reverse the Food and Drug Administration’s (FDA) actions on mifepristone had the authority to do so.
Solicitor General Elizabeth Prelogar, speaking for the federal government, repeatedly highlighted that the opposing party had not provided a doctor who is at immediate risk due to expanded access to mifepristone.
When questioned by Justice Clarence Thomas about who could sue the FDA over a drug, Prelogar gave examples of doctors or patients seeking greater access to a drug, or a competing drug manufacturer concerned about the FDA’s approval causing competitive harm.
Erin Hawley, representing the Christian legal advocacy group Alliance Defending Freedom, argued that the FDA had met the requirements by relying on OB-GYN hospitalists “to care for women harmed by abortion drugs.”
She contended that the agency was outsourcing abortion drug harm to doctors who are sometimes put in a position to “choose between helping a woman with a life-threatening condition and violating their conscience.”
Justices Amy Coney Barrett and Elena Kagan both observed, however, that neither of the two doctors at the center of the case appear to have performed abortions against their conscience, with Kagan questioning why it seemed neither doctor had expressed their conscience objections to their hospitals.
One of the doctors stated in her affidavit that her partner had been “forced” to perform a dilation and curettage — removing living tissue from a uterus — but Barrett noted this did not necessarily mean there was a living embryo or fetus, as is the case in miscarriages. She mentioned that if that is the case, the affidavits appear more like conscience objections than actual harm.
Thomas and Alito seem interested in reviving the Comstock Act
Both Thomas and Justice Samuel Alito repeatedly mentioned the Comstock Act, a 151-year-old law that prohibits the mailing of “obscene” or “indecent” materials.
Alito questioned why the FDA had not addressed the law in its decisions to expand mifepristone access through the mail.
“This is a prominent provision; it’s not some obscure subsection of a complicated, obscure law. Everybody in this field knew about it,” Alito stated.
The law has not been enforced in over a century, but anti-abortion activists and some GOP officials are considering it as a means for a future Republican president to effectively prohibit abortion across the country without requiring approval from Congress.
Thomas and Alito raised questions about Comstock during a meeting with all three attorneys on Tuesday. Some advocates for abortion rights and legal scholars are worried that if the Supreme Court rules against standing, justices Thomas and Alito might issue a Comstock-focused opinion that could provide legal support for a future Republican administration.
Both Prelogar and Jessica Ellsworth, the attorney for drug maker Danco, stated that Comstock does not apply.
Prelogar responded to Alito's inquiry by saying, “I don't think that the Comstock provisions fall under the FDA's jurisdiction.”
Ellsworth, when questioned by Thomas, stated, “This law has not been enforced for almost a century, and I don't believe this case gives the court an opportunity to comment on the scope of the law.”
However, Hawley believed the law's meaning was clear.
Hawley argued, “We do not believe that any previous Supreme Court case empowers the FDA to disregard other federal laws. The Comstock Act states that drugs should not be sent by mail or through common carriers.”
Conservatives criticized the request for a nationwide injunction.
Chief Justice John Roberts and Justice Neil Gorsuch strongly questioned Hawley about the nationwide relief sought by the Alliance.
“Why can’t the court specify that this relief applies specifically to the parties involved in the case, instead of directing it to the agency in general and saying that the agency can't do this anywhere?” Roberts asked.
Hawley argued that such a conclusion would be unworkable, but before she could finish, Gorsuch interrupted, saying the nationwide relief was a “universal injunction” that lower courts have adopted, but the Supreme Court has not.
“We are dealing with a few individuals who have raised a conscience objection,” Gorsuch said. “This case seems to be a classic example of turning what could be a small lawsuit into a nationwide legislative debate on an FDA rule or any other government action.”
The Biden administration argued that because the plaintiffs sued the FDA, rather than hospitals compelling doctors to perform procedures against their conscience, for instance, there's no possibility of targeted relief.
“The only way to provide a remedy based on this theory of injury, therefore, was to grant this kind of nationwide relief that … it’s ultimately requiring all women everywhere to change the conditions of use of this drug,” Prelogar said.
Another abortion case is on the horizon.
At several points, the parties involved mentioned another upcoming abortion case before the court. This case revolves around Idaho's challenge to a federal law that mandates doctors to perform abortions in emergency situations.
The Biden administration argues that the federal Emergency Medical Treatment and Labor Act (EMTALA) requires doctors to carry out life-saving or health-saving medical treatment, including abortions, in emergency situations.
On Tuesday, Hawley contended that the government is inconsistent in its stance on whether doctors have the right to refuse to provide treatment on religious grounds.
She noted that in the mifepristone case, the government argued that doctors should simply follow their conscience-based objections to not provide certain treatments, rather than trying to limit abortion pills for the entire country.
But in the Idaho case, Hawley stated that the government asserts EMTALA requires doctors not to reject any patients.
Prelogar mentioned that the government does not believe EMTALA would take precedence over individual doctors' conscience objections. It places obligations on hospitals but does not override physicians' conscience protections.
