Justices Barrett and Cavanaugh overruled Roe v. Wade.  Why they can save access to the abortion pill
Justices Barrett and Cavanaugh overruled Roe v. Wade.  Why they can save access to the abortion pill


Justices Brett Cavanaugh and Amy Coney Barrett often battle on cases, especially when it comes to abortion and reproductive rights.

And these two Donald Trump appointees with similar backgrounds and sensibilities shared a distinct concern Tuesday during oral arguments on the Food and Drug Administration’s regulation of the abortion pill mifepristone: Whether any doctor was forced, against their conscience, to participate in abortion.

Cavanaugh asked just one question during the 90-minute debate — and it was to the point. Barrett was more active, but her questions seemed animated by the same concern for doctors who might have religious or moral objections to abortion.

“Just to confirm the standing question, under federal law, no doctor can be forced against their conscience to perform or assist in an abortion, right?” Kavanaugh asked lead attorney Elizabeth Prelogar, arguing for the Biden administration.

“Yes,” replied Prelogar.

Ultimately, the justices exposed the weaknesses in the arguments of a conservative Christian group that is their ideological ally, suggesting through their comments that mifepristone opponents failed to convince them that they were harmed by the FDA’s approval and oversight of the drug. As a result, they would have no legal “standing” to bring the case.

Kavanaugh and Barrett were Trump’s second and third appointments to the bench in 2018 and 2020, respectively. They were close friends before serving together after taking similar turns in their early careers, first as Supreme Court justices and then eventually to federal appellate posts. Both are Catholic, as are four of the other nine justices.

Still, if those ruling justices in the conservative supermajority — two who often determine the outcome of the case — follow their trend of arguments, it could mean the final decision leaves intact the FDA’s rules on access to abortion drugs. The decision is expected by the end of June.

Tuesday’s case, which drew hundreds of demonstrators to the columned courthouse, was the first abortion dispute since the Supreme Court’s 2022 overturn of Roe v. Wade and the constitutional right to abortion. Cavanaugh and Barrett were part of that 5-4 majority.

After the decision in Dobbs v. Jackson Women’s Health Organization More than 20 states have banned or greatly restricted abortions, and women’s reliance on mifepristone abortions, the first in a two-drug regimen used to terminate fetuses in the early weeks, has grown. The Guttmacher Institute reported that 63% of women in America who terminated a pregnancy in 2023 used medication instead of undergoing a surgical procedure.

At stake in the new case is not just access to mifepristone, but the FDA’s broader ability to evaluate the safety and effectiveness of any drug, whether related to pregnancy or such conditions as epilepsy, diabetes or cancer.

Overall, the thrust of the arguments demonstrates the shaky position of anti-abortion physicians in the Alliance for Hippocratic Medicine.

They do not prescribe mifepristone.

But they argue that because they take on emergency room duties, they may be forced to care for women who have complications from medical abortion. They said that when the restrictions were loosened in 2016 and 2021, the FDA increased the chances that people with ectopic pregnancies and other dangerous conditions would need emergency care.

The challengers strategically took their case to the District of Texas with a like-minded judge, U.S. District Court Judge Matthew Kaczmarik, and won there and then largely prevailed before the 5th U.S. Circuit Court of Appeals, known for its own conservative leanings .

But on the Supreme Court, only two justices, Clarence Thomas and the far-right Samuel Alito, expressed deep sympathy for the approach the challengers had taken. They suggested they had made a case for injury and as well as the grounds to attack the FDA’s assessment of the drug’s safety and use.

Since mifepristone was first approved for the market in 2000, it has been used by more than 5 million American women. The FDA says it has lifted certain restrictions over the years only after a comprehensive review.

Among the contested provisions are those that allow abortion drugs to be available up to 10 weeks into pregnancy (rather than just seven weeks) and to be dispensed by mail (instead of an in-person appointment).

Barrett asks about the conscience and the situation. Liberals help

Much of the questioning in court focused on the trauma of conscience that doctors said they had suffered.

Prelogar, the first on the stand to appeal the lower court’s ruling against the FDA, argued that long-standing federal conscience protections already apply to doctors who refuse for religious or moral reasons to perform an abortion.

“I just want to be clear,” Barrett urged Prelogar, asking specifically about emergency room doctors, “is it your position that such doctors would invoke the conscience protection of federal law?”

“Yes, absolutely,” Prelogar replied, adding that “hospitals have all kinds of plans in place to deal with these types of contingencies. You know, they have staffing plans. I understand, as a matter of best practice, they often ask doctors to state their conscientious objection in advance so that they can take this into account when staffing.’

02:26 – Source: CNN

Planned Parenthood CEO on How Supreme Court Justices Reacted to Abortion Pill Hearing

Liberal Justice Elena Kagan later picked up on the topic, telling Prelogar, “General, if I may take you back to the discussion you had with Justice Barrett about conscientious objection,” and giving Prelogar a chance to reinforce the government’s position that challengers have not identified a single physician who was or would be forced to treat a patient with mifepristone.

“They oppose ending the life of a human being in the womb and fear that they may have to perform an abortion for a woman who has an ongoing pregnancy,” Prelogar said, adding that conscience protections dating back to the 1970s of the last century, is designed to handle such scenarios.

When Cavanaugh followed up with his related question, Prelogar said, “We think federal conscience protections provide broad coverage here. … There are also state law protections that often apply in this context.”

Moments later, liberal Justice Ketanji Brown Jackson also raised the issue that concerned Barrett and Cavanaugh, as she also noted that the challengers had sought a national ban restricting the access and use of mifepristone.

“I am concerned that there is a significant disparity in this case between the harm claimed and the relief sought, and that it could or should matter for standing purposes,” Jackson said, addressing Prelogar.

However, Jackson said: “They are saying that because we object to being forced to participate in this procedure, we are seeking an injunction to prevent anyone from ever having access to these drugs. And I guess I’m just trying to understand how they could be entitled to that given the injury they claim.

Prelogar agreed, saying, “I really think it’s relevant to the situation. There is a profound disparity here between the harm claimed and the relief they seek.

When Erin Hawley, representing anti-abortion doctors, urged the justices to uphold the 5th Circuit’s decision, Barrett again turned to the doctors’ alleged injuries.

She noted that Hawley provided a statement from a doctor who said she performed a procedure to remove tissue from inside a woman’s uterus, dilate and curettage, commonly called a D&C.

Barrett noted that “a D&C doesn’t necessarily mean there was a live embryo or fetus because you can have a D&C after, you know, a miscarriage.”

“I think the difficulty here,” Barrett continued, “is that, at least to me, these (doctors’) affidavits really look more like conscientious objection is strictly to actually participating in an abortion to end the life of the embryo or fetus. . And I don’t read either of them (Dr.) to say that they were ever involved in this.

“Harms of conscience,” Hawley argues, “extend beyond the simple requirement to terminate unborn life.”

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