US Supreme Court appears skeptical of abortion pill case
US Supreme Court appears skeptical of abortion pill case

  • By Rebecca Hartman of the Supreme Court, Bernd Debusman Jr. and Kayla Epstein
  • BBC News

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Watch: Protesters gather outside US Supreme Court as justices hear abortion pill case

The U.S. Supreme Court appeared skeptical of efforts to limit access to a commonly used abortion drug, mifepristone, during a hearing Tuesday.

Several members of the court questioned whether this was a proper challenge to the drug’s federal approval.

It is the most significant abortion case before the US Supreme Court since it ended the nation’s right to abortion in June 2022.

The result could affect access to abortion for millions.

This case centers on decisions made by the Food and Drug Administration, or FDA, to loosen restrictions on the use of mifepristone since 2016.

The Alliance for Hippocratic Medicine, a group of doctors and anti-abortion activists, filed a lawsuit in November 2022, alleging that the drug was dangerous and that the federal agency had wrongfully expanded access to it.

Numerous studies have shown that mifepristone, which was first approved by the FDA in 2000, is safe.

But the group, which includes medical professionals, also argued that its members could be harmed by having to treat patients who used mifepristone to terminate pregnancies. They said it would be against their own religious beliefs.

Elizabeth Prelogar, the US attorney general, told the court that doctors could not prove that the FDA’s decisions directly harmed them.

She added that a ruling in favor of the anti-abortion group would “severely disrupt the federal drug development and approval system” and “would seriously harm women across the nation.”

Several of the judges seemed to find the case’s merits questionable. Even some of the conservative justices who have ruled in favor of anti-abortion plaintiffs in the past question whether doctors have suffered because of the rule changes.

Judge Amy Coney Barrett, who was appointed by former President Donald Trump, pressed the group’s lawyers on whether two of the doctors cited in the case were forced to terminate pregnancies against their will.

Some of the justices, both liberal and conservative, questioned whether there was a “disparity” between the injuries the group claimed and the changes they were seeking — limiting millions of Americans’ access to mifepristone.

Judge Neil Gorsuch, another conservative judge appointed by Mr. Trump, questioned whether a ruling in their favor could open the door for “a handful of individuals” to turn “a small court case into a nationwide legislative assembly on an FDA rule or other federal government action’.

Two of the court’s liberal justices, Justice Elena Kagan and Justice Ketanji Brown Jackson, questioned why doctors are no longer protected by their right to file conscientious objections to certain procedures, such as abortion.

Mifepristone is used in combination with another drug – misoprostol – for medical abortions and is now the most common method of abortion in the US.

image source, Getty Images

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Federal judge revokes FDA approval of mifepristone in 2023

Medical abortions account for 63% of all abortions in 2023, up from 53% in 2020, according to the Guttmacher Institute. More than five million women in the US have used mifepristone to terminate their pregnancies.

The court previously ruled that it would not hear a challenge to the FDA’s approval of the drug, but a ruling against the FDA could severely limit access because it would reverse the expansion of access that has occurred since 2016.

The FDA announced in 2016 that it would allow the use of mifepristone up to the 10-week mark rather than up to seven weeks into pregnancy. Then, in 2021, it eliminated in-person dispensing requirements, a move that allowed providers to mail it to patients.

In 2022, the FDA moved forward by allowing retail pharmacies to dispense the drug, meaning medical professionals — not just doctors — could prescribe it. The following year, a judge in Texas overturned the FDA’s approval of mifepristone.

Abortion remains one of the most contentious political issues in the US and is likely to be a major factor in the 2024 election.

Illustrating this friction, abortion advocates and reproductive rights groups set up podiums with microphones side by side on the steps of the Supreme Court. Each side hosted a slate of speakers who urged the judges to “do the right thing,” though they called for different results.

A total of several hundred protesters gathered outside the court on Tuesday. Many waved signs with phrases such as “abortion is health care”, “trust medical science” and “we will not go quietly back to the 1950s”.

Thirteen of the protesters were arrested for illegally blocking roads and a crosswalk, according to the US Capitol Police.

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