life after roe

What the Supreme Court Said About Abortion-Pill Access

Photo: DREW ANGERER/AFP via Getty Images

The U.S. Supreme Court heard oral arguments on Tuesday in its first major abortion case since overturning Roe v. Wade nearly two years ago. The legal challenge focuses on the FDA’s regulation of mifepristone, one of two pills used in medication abortions. The Court will now determine whether to reinstate restrictions on the drug’s use that were in place before 2016, including requiring that mifepristone be administered in person by a physician, banning it from being shipped by mail, and limiting its use to up to seven weeks of pregnancy. Health experts say these restrictions are medically unnecessary, and whatever the Court decides will determine the drug’s availability across the U.S. — not just in red states.

Abortion opponents and supporters alike are deeply invested in whether people can access medication abortions as pills are now used in more than two-thirds of abortions, according to a recent study. They have also been at the center of an increase in self-managed abortions taking place outside the formal health-care system, which have helped make up for the loss of clinician-provided care in states that banned or heavily restricted the procedure after Dobbs.

Arguing the case before the Court were Solicitor General Elizabeth Prelogar, representing the government; attorney Jessica Ellsworth, representing Danco Laboratories, the mifepristone manufacturer; and attorney Erin Hawley, representing the anti-abortion plaintiffs, a group of advocates and physicians backed by Alliance Defending Freedom, the same conservative Christian legal organization that helped overturn Roe (she is also the wife of Republican senator Josh Hawley). Here’s what they said about the arguments over abortion-pill access.

The justices seemed skeptical that the plaintiffs even had standing to bring the case.

A large part of the justices’ questioning focused on whether the plaintiffs, who claim they were injured as a result of the FDA’s regulations on mifepristone, have legal standing to bring the case. Justices Ketanji Brown Jackson and Neil Gorsuch hinted that they see a mismatch between the moral harm the doctors claimed they experienced and the remedy they are seeking: restrictions on mifepristone that would impact patients nationwide. As Justice Amy Coney Barrett pointed out, only two of the seven physicians who shared their experiences in the lawsuit explicitly said they had experienced moral and emotional harm when they treated patients who had taken abortion pills, and she questioned whether those physicians had evidence of “actually participating in the abortion to end the life of the embryo or fetus.”

Alito and Thomas brought up a 19th-century law that could lead to a de facto national abortion ban.

Out of all the justices, conservatives Samuel Alito and Clarence Thomas seemed eager to allow for the restrictions on mifepristone. Both also brought up the Comstock Act, which the plaintiffs claim bars the FDA from allowing mifepristone to be sent through the mail. The federal anti-obscenity law dates back to 1873 and outlaws the mailing of “every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance.” Anti-abortion advocates have argued the measure could be used to create a national abortion ban without input from Congress by prohibiting the mailing of pills and other instruments used to terminate a pregnancy.

During the arguments, Alito referred to the statute, 18 USC 1461, rather than the law’s name, calling it “a prominent provision … not some obscure subsection of complicated obscure law” — even though Comstock has remained dormant for half a century. Thomas made explicit reference to the measure, asking Ellsworth whether Danco is violating the statute by “mailing your product and advertising it” since the measure “is fairly broad, and it specifically covers drugs such as yours.” (In his concurring opinion to Dobbs, Thomas argued the Court should reconsider its previous decision establishing the right to contraception. Comstock also originally banned the mailing of birth control.)

The justices dwelled on the drug’s safety record.

During questioning, several justices debated whether they should even be determining whether mifepristone is safe given that they do not have medical expertise. Justice Sonia Sotomayor asked whether that responsibility falls under the FDA’s purview, and Prelogar agreed. Alito asked whether an increase in emergency room visits after the FDA lifted the restrictions at the heart of the case was of “no consequence” to the agency. The solicitor general responded by acknowledging that, while visits to the ER had increased, “that didn’t equate to additional serious adverse events and, in fact, [in] one of the studies, half of the women who went to the emergency room didn’t get any treatment at all.”

Both Prelogar and Ellsworth pointed out that research overwhelmingly shows medication abortion to be safe and effective with less than 0.4 percent of patients experiencing serious complications that require hospitalization. (Tylenol and Viagra are riskier drugs, to put this in perspective.) Ellsworth also noted that a medical journal recently retracted two studies claiming to prove mifepristone’s harms, which a federal judge in Texas referenced in his ruling that sided with the plaintiffs last year. The journal cited flaws in the study design and the analysis of the data as well as the authors’ conflicts of interest as reasons for the retraction.

The justices referenced a case they will hear next month on emergency abortion care.

The mifepristone challenge isn’t the only abortion case the Court is hearing this term. Next month, justices will hear arguments in a pair of consolidated cases — Idaho v. United States and Moyle v. United States — that focus on the Emergency Medical Treatment and Active Labor Act. The law requires that emergency departments at hospitals that receive federal funding treat patients in need of emergency care. After Dobbs, the Biden administration issued guidance affirming that the measure applies to treating patients in need of emergency abortion care.

Barrett brought up the case as she asked about the anti-abortion doctors’ standing in the mifepristone challenge. She asked the solicitor general whether EMTALA would require these physicians to treat patients who have taken abortion pills even if they had moral objections to abortion care. It would not, Prelogar responded, because EMTALA applies to hospitals, not individual doctors, and federal law already allows doctors to opt out of care if they have conscience-based objections.

The Court is expected to issue a ruling on both cases in late June.

The Cut offers an online tool you can use to search by Zip Code for professional abortion providers, including clinics, hospitals, and independent OB/GYNs, as well as for abortion funds, transportation options, and information on remote resources such as receiving the abortion pill by mail. For legal guidance, contact Repro Legal Helpline at 844-868-2812 or the Abortion Defense Network.

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