Key takeaways from Supreme Court abortion pill arguments

March 27, 2024

Abortion rights returned to the Supreme Court Tuesday for the first time since conservative justices overturned Roe v. Wade in 2022.  

The case questioned whether federal regulators overstepped their authority by loosening restrictions to make mifepristone, a widely available drug used in medication abortions, easier to access.

A decision is expected later this summer and could have a major impact on the 2024 presidential election. Democrats are using abortion as a cudgel against Republicans and former President Trump, who appointed three of the justices who voted to end Roe.  

Here are some key takeaways: 

Most questions focused on the right to sue, not FDA  

One of the central questions before the court was whether the groups suing to roll back the Food and Drug Administration’s (FDA) actions on mifepristone had the right to do so.  

Solicitor General Elizabeth Prelogar, arguing for the federal government, repeatedly pointed out the opposing party had not presented a doctor who “faces imminent harm” due to expanding access to mifepristone. 

When asked by Justice Clarence Thomas who would have standing to sue the FDA over a drug, Prelogar gave the examples of physicians or patients who want greater access to a drug, or a competing drug manufacturer who thinks the FDA’s approval creates competitive harm. 

Erin Hawley, arguing on behalf of the Christian legal advocacy group Alliance Defending Freedom, said standing had been satisfied by the FDA relying on OB-GYN hospitalists “to care for women harmed by abortion drugs.”  

She argued the agency was outsourcing abortion drug harm to doctors who are sometimes forced to “choose between helping a woman with a life-threatening condition and violating their conscience.” 

Justices Amy Coney Barrett and Elena Kagan both noted, 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 appeared neither doctor had voiced 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 mean there was a living embryo or fetus, as is the case in miscarriages. She said if that is the case, the affidavits read more like conscience objections than actual injury. 

Thomas and Alito seem interested in resurrecting the Comstock Act 

Both Thomas and Justice Samuel Alito repeatedly invoked the Comstock Act, a 151-year-old anti-vice law that bans the mailing of “obscene” or “indecent” materials. 

Alito questioned why the FDA had not contended with the law in its decisions on expanding access to mifepristone 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 said.  

The law hasn’t been applied in more than a century, but anti-abortion activists and some GOP officials are eyeing the law as a way for a future Republican president to effectively ban abortion nationwide without needing Congress.  

Thomas and Alito asked all three attorneys Tuesday about Comstock. Some abortion-rights groups and legal experts are expressing concern that while the Biden administration may win if the court rules against standing, one or both justices could write a Comstock-focused opinion and give legal cover to a future GOP administration. 

Both Prelogar and Jessica Ellsworth, the attorney for drug manufacturer Danco, said Comstock doesn’t apply.  

“I think that the Comstock provisions don’t fall within FDA’s lane,” Prelogar said in response to Alito’s questioning. 

“This statute has not been enforced for nearly 100 years, and I don’t believe that this case presents an opportunity for this court to opine on the reach of the statute,” Ellsworth said in response to a question from Thomas.  

But Hawley said the law’s meaning was “pretty clear.” 

“We don’t think that there’s any case of this court that empowers FDA to ignore other federal law,” Hawley said. “The Comstock Act says that drugs should not be mailed either through the mail or through common carriers.”  

Conservatives attacked request for nationwide injunction  

Chief Justice John Roberts and Justice Neil Gorsuch sharply questioned Hawley about the nationwide remedy the Alliance was seeking.  

“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 said such a finding would be impractical, but before she could finish explaining, Gorsuch interrupted, saying the nationwide relief amounted to a “universal injunction” adopted by lower courts that had never been adopted by the Supreme Court. 

“We have before us a handful of individuals who have asserted a conscience objection,” Gorsuch said. “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 government action.” 

The Biden administration contended that because the plaintiffs sued the FDA, rather than hospitals forcing doctors to carry out procedures against their conscience, for example, 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 looms ahead 

In multiple instances, the parties involved referenced another abortion case coming before the court next month. That case centers on Idaho’s challenge to a federal law that requires doctors to perform abortions in emergency circumstances. 

The Biden administration contends the federal Emergency Medical Treatment and Labor Act (EMTALA) requires doctors to perform life-saving or health-saving medical treatment, including abortions, in emergency situations.  

On Tuesday, Hawley argued the government “can’t get its story straight” on whether doctors have the right to object to providing treatment on religious grounds.  

She pointed out that in the mifepristone case, the administration argued doctors should simply invoke their conscience-based objections not to provide certain treatments, rather than try to restrict abortion pills for the whole country. 

But in the Idaho case, Hawley said, the government says EMTALA requires doctors not to turn any patients away. 

Prelogar said the government does not think EMTALA would override individual doctors’ conscience objections. It imposes obligations on hospitals but doesn’t supersede the conscience protections of physicians.