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Justices seem skeptical of challenge to restrict access to abortion pill

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First, to the Supreme Court. A majority of the justices, both conservative and liberal, seemed uninclined to block the FDA's current rules for prescribing and dispensing the abortion pill mifepristone. The case poses a threat not just to the increased accessibility of abortion pills, but to the FDA's entire structure for regulating pharmaceuticals. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: More than half the women in this country who choose to terminate a pregnancy use a combination of pills approved by the FDA, including mifepristone. The pill regimen was first approved 24 years ago, and over the last seven years, the agency has eliminated some restrictions that it found to be unnecessary. For instance, the pills can now be prescribed during the first 10 weeks of pregnancy instead of the original seven weeks.

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A group of anti-abortion doctors called the Alliance for Hippocratic Medicine challenged the FDA's decisions providing for increased accessibility. But in the Supreme Court today, the justices focused less on the FDA and more on whether the anti-abortion group had legal standing to be in court at all. To have standing to sue, the group would have to show that its members had suffered a concrete harm, even though they don't prescribe mifepristone. That is a high hurdle.

Lawyer Erin Hawley, representing the anti-abortion group, contended that particularly at hospitals, doctors opposed to abortion might well be drafted into finishing incomplete abortions, but she was unable to cite any example of that happening, pointing instead to affidavits filed by two alliance members, examples that Justice Barrett found unpersuasive.

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AMY CONEY BARRETT: The fact that she performed a D&C does not necessarily mean that there was a living embryo or fetus 'cause you can have a D&C after a miscarriage.

TOTENBERG: Barrett, a mother of seven who herself suffered miscarriages, wasn't the only justice to ask medical questions. Indeed, all four of the female justices asked detailed questions that likely would not have been asked at the Supreme Court prior to the appointment of the first woman in 1981 - questions about ultrasound tests and why they are not required prior to getting the pill or about the FDA's findings that prescriptions after telemedicine or phone appointments produced no uptick in emergency room visits. Barrett and Justice Kavanaugh also asked Solicitor General Elizabeth Prelogar whether there is a conscience exception that protects doctors from being required to perform abortions. Here's Kavanaugh.

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BRETT KAVANAUGH: Just to confirm on the standing issue, under federal law, no doctors can be forced against their consciences to perform or assist in an abortion. Correct?

ELIZABETH PRELOGAR: Yes.

TOTENBERG: Justice Gorsuch pointed to this case as typical of what he called a rash of recent orders from individual federal judges, orders that apply nationwide. In this case, the original decision sought to bar the abortion pill entirely.

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NEIL GORSUCH: 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.

TOTENBERG: There was, of course, in today's case, a larger question. And Justice Alito seemed to despair that his colleagues did not seem interested in using this case to hollow out the regulatory powers of the FDA.

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SAMUEL ALITO: Is there anybody who could challenge in court the lawfulness of what the FDA did here?

TOTENBERG: Addressing the lawyer for Danco Laboratories, which makes and markets for mifepristone, Alito asked...

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ALITO: Do you think the FDA is infallible?

TOTENBERG: Justice Jackson asked what she called the flip side of that question.

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KETANJI BROWN JACKSON: Which is, do you think that courts have specialized scientific knowledge? Do you have concerns about judges parsing medical and scientific studies?

TOTENBERG: Yes, replied Danco lawyer Jessica Ellsworth, pointing to the first decision in this case, a decision that relied in part on an analysis of anonymous blog posts, as well as three studies that were subsequently withdrawn as flawed.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Nina Totenberg
Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.