Supreme Court questions the viability of abortion pill case

Small robots with white abortion pill boxes attached to their heads rolled around on the sidewalk in front of the Supreme Court Tuesday morning. Some women ingested pills they received from the robots. Representatives from the abortion pill group Aid Access said doctors in another location were remotely controlling the robots, which Aid Access had dubbed “Roe-bots” in reference to the overturned Roe v. Wade decision.

Moveable metal bike rack barricades separated groups of pro-life and pro-abortion demonstrators. Among the demonstrators to the left of the metal barriers, a young woman carried a bright yellow sign that read, “[Obscenity] SCOTUS we’re doing it anyway.” She described having a drug-induced abortion in 2011 as “extremely easy, extremely safe.” On the other side of the barriers, pro-lifers chanted “this pill kills” as demonstrators lay on the ground holding white boxes with “ABORTION KILLS” in black lettering.

Inside the court, the oral arguments in U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine were far less personal than the signs and slogans outside. During the 90-minute hearing, the justices gave little attention to the question of whether the Food and Drug Administration harmed women by loosening safety precautions for the abortion drug mifepristone. Instead, they focused on the question of standing. The Alliance for Hippocratic Medicine, a coalition of pro-life medical organizations, brought the lawsuit along with individual doctors and medical groups. By changing safety standards for distributing the drug, did the FDA have a big enough effect on these pro-life doctors to warrant their lawsuit?

In 2021, the FDA made permanent a COVID-19 measure allowing abortionists to mail the drugs to women without any in-person visits. The pro-life doctors in the case argue that decision and a move in 2016 to eliminate other safety precautions for dispensing the drug has led to an increase of emergency room visits that some of these pro-life doctors have had to oversee. Some of the doctors say they’ve had to finish incomplete chemical abortions even though they oppose the procedure. The rule change also allows brick-and-mortar pharmacies to fill the prescriptions.

In her opening statement, Solicitor General Elizabeth Prelogar representing the FDA led with the argument that the pro-life doctors in the case did not have standing. She said the plaintiffs in the case failed to point to a specific doctor who faces “imminent harm” of violating his or her conscience by completing an incomplete chemical abortion.

“Only an exceptionally small number of women suffer the kind of serious complications that could trigger any need for emergency treatment,” Prelogar said. And, even if that did happen and a woman did come to one of the doctors in the case, she added, the doctors already have conscience protections under federal law.

That evoked a cascade of questions from the justices. Justice Clarence Thomas’ opening question set the tone for the remainder of the morning: if these doctors don’t have standing, who does?

Justice Samuel Alito followed that line of questioning, asking if even a woman who suffered adverse consequences from taking mifepristone would be able to sue. “Shouldn’t somebody be able to challenge that in court? … In your view, who would have standing to bring that suit?” he asked.

Prelogar admitted it’s hard to imagine who would have standing to bring this type of case. She acknowledged that even women harmed might not be able to sue due to sovereign immunity, a legal doctrine that makes a government immune from civil lawsuits.

In her arguments on behalf of the pro-life doctors, Alliance Defending Freedom senior counsel Erin Hawley contended that the doctors have standing because even the FDA label for mifepristone admits risk of harm. According to the label, 2.9 to 4.6 percent of women who undergo chemical abortion will wind up in an emergency room and 2 to 7 percent will require some sort of surgical intervention.

Hawley argued that denying the doctors standing would allow federal agencies to force parties to violate their consciences, since the lack of supervision of chemical abortions requires doctors to choose between not helping a woman whose life is at risk and being complicit in an abortion.

During the rest of her time at the stand, Hawley had little opportunity to air the doctors’ arguments about the harms women face from chemical abortion. The justices peppered her with more questions about standing, with many of their questions focused on the doctors’ conscience objections.

Justice Ketanji Brown Jackson pointed out that doctors already have the ability to object to participating in an abortion due to federal law. “What they’re asking for here is that, in order to prevent them from possibly ever having to do these kinds of procedures, everyone else should be prevented from getting access to this medication,” Jackson said. She suggested that it seems like a lot to ask.

But Hawley argued the doctors don’t have time to object in these cases because of the “emergency nature” of the procedures. Some of the doctors don’t necessarily know whether they’re stepping into a miscarriage case or an elective abortion case until they’re in the operating room.

But multiple justices, including Justices Jackson, Amy Coney Barrett, and Elena Kagan, were skeptical that the doctors who submitted testimony in the case actually asserted that they ever were forced to participate in a procedure that went against their conscience.

“I was surprised at how much of the focus was on standing,” said Eric Scheidler, executive director of the Pro-Life Action League. He listened to oral arguments on the Supreme Court’s website from his office in Aurora, Ill., before driving to a protest at Walgreens headquarters in Deerfield, Ill. Along with CVS, that pharmacy chain recently announced it would start filling mifepristone prescriptions at certain locations—a move made possible by some of the FDA’s recent changes to the mifepristone safety requirements. On Tuesday, pro-lifers gathered at Walgreens and CVS locations across the country to draw attention to the recent arrival of abortion pills at corner drugstores.

“From the layman’s perspective, what you want to hear is about the harms that are being done to women, the actual adverse effects that are happening to them, and the fact that they are being told something is perfectly safe when, in fact, it has a very high complication rate,” Scheidler said. But what he heard instead were “obscure legal questions” that can be difficult for non-lawyers to follow.

He said he got the sense that things weren’t going well for the pro-life plaintiffs. “Honestly, my feeling as the arguments were wrapping up was, ‘I don’t think we’re going to win this case,’” he said.

But Scheidler thought the government’s position that no one is qualified to bring this kind of litigation against the FDA could work in favor of the pro-life plaintiffs. “If the Supreme Court feels like the executive branch here has insulated itself from any kind of accountability, that may be something that plays in our favor as they decide this case.”

Scheidler said pro-lifers still have ways to push back on the FDA’s expansion of the abortion pill, regardless of how the court rules in the case. He pointed to the protests at Walgreens and CVS stores as one example. “If pro-life Americans are willing to stand up against Walgreens and CVS and say, ‘We’re taking our business elsewhere… we’re not going to be involved in a company that’s become a central player in the abortion industry,’ maybe they’ll decide to turn back,” he said.

—with reporting from Carolina Lumetta