Supreme Court to anti-abortion activists: You can't just challenge every policy you don't like

The Biden administration’s effort to preserve expanded access to the abortion drug mifepristone found more traction among the conservative justices than many observers expected. Three members of the court’s right flank expressed doubts about the legality and even the wisdom of allowing a coalition of anti-abortion medical groups to challenge the Food and Drug Administration’s conclusions about the safety of mifepristone, the pill used in nearly two-thirds of all abortions.

The Supreme Court arguments Tuesday morning provided windows not only into how the conservative-dominated court may rule in this legal showdown, but on other thorny issues likely to come before the bench in the months and years ahead.

Roughly 90 minutes of grappling over those issues also produced some unusual and noteworthy moments.

Solicitor General Elizabeth Prelogar gave Justice Amy Coney Barrett a mini medical lesson on how to detect an ectopic pregnancy. Justice Samuel Alito threw pointed rhetorical questions at the attorney for the abortion pill manufacturer Danco, asking if the company was part of the case because they want to “make more money.” And Justice Brett Kavanaugh — a potential swing vote — remained silent nearly the whole time, repeatedly passing when given a chance to ask a question.

The case could shape not only abortion access nationwide but the power of the FDA going forward to regulate all drugs. And while most justices appeared skeptical of the strength of this particular challenge — the court appeared open to future arguments that could curb the ability to terminate a pregnancy.

Stiff headwinds on standing

The anti-abortion forces quickly ran into strong pushback from both conservative and liberal justices doubtful that the organizations pressing the case had met a fundamental requirement for federal court lawsuits: that the parties suing can show a concrete injury from the practice they’re challenging.

Barrett took the lead, asking whether the range of medical professionals that the Alliance for Hippocratic Medicine considers to be in its ranks actually have a reasonable chance of encountering a drug-induced partially-completed abortion or dealing with the aftermath of such a situation.

“You have a broad number of doctors that are in your organization, I gather, dentists, some doctors who have retired. How many members of your organization are OB-GYNs who practice in hospitals who might be called into these ERs?” asked Barrett, widely regarded as an abortion opponent before taking the bench and one of the five justices who joined the court’s momentous ruling in 2022 overturning the federal constitutional right to abortion.

The lawyer for the anti-abortion groups, Erin Hawley, insisted that hundreds of their members are OB-GYNs, but pointed the court to the seven named plaintiffs in the case and to two of them in particular. That approach didn’t fare much better with Barrett, who said that the only indication of a doctor actually being put in a situation where the physician had to remove a living fetus involved the partner of one of the obstetricians, not the doctor herself.

“You need a person. Who’s your person?” Justice Elena Kagan said, prompting Hawley to name a doctor she said objected to “completing” an abortion. Then, the lawyer urged Kagan to look for more detail at the opinion of the controversial district court judge in the case, Matthew Kacsmaryk.

“I'm not sure I care all that much about the district court,” Kagan replied dismissively.

Claims for “organizational” standing encounter static

While several justices expressed doubts that individual doctors had shown they were impacted by the FDA’s actions regarding mifepristone, there was even more skepticism on the court about the anti-abortion groups’ claims that organizations also had the right to challenge the agency.

Justice Clarence Thomas said the idea that the costs of preparing a lawsuit gave an organization the standing to bring it would unleash a flood of cases. “That seems … easy to manufacture,” he said.

Justice Sonia Sotomayor said the anti-abortion groups seemed to be doing the kind of research they would do whether the FDA had expanded access to the abortion drug or not.

“Their job is to do exactly what you're talking about and they're doing it,” Sotomayor said. “They're investigating certain problems, but that's not an injury that's redressable … by vacating this rule.”

Let your conscience be your guide

Liberal and conservative justices suggested a possible offramp. Instead of granting challengers’ request for nationwide restrictions on abortion pills, they asked, couldn’t the doctors in question simply invoke their existing legal right to refuse to participate in an abortion? Barrett asked if even a doctor in a “health care desert” — where there may not be someone to take his or her place — could opt out of treating someone who took abortion pills and needed follow up care, citing an Idaho case the court will hear in April on the the Emergency Medical Treatment and Active Labor Act, known as EMTALA.

Prelogar answered emphatically that a doctor would be able to invoke those rights. “The federal government has never taken the position that EMTALA would override an individual doctor's conscience objections,” she said.

The problem, Kagan and Jackson later argued, is that the doctors challenging the pills failed to articulate in their affidavits what specific objections they had to which medical procedures and whether they were forced to participate in them anyway.

When Hawley said the doctors didn’t want to be “complicit in the process” of an abortion, Jackson cut her off: “No, wait, I'm sorry. ‘Complicit’ like, ‘I work in the emergency room and this is going on’? I'm handing them a water bottle?’ What do you mean?”

The 'Comstock Act problem'

Thomas and Alito were eager to grill attorneys for the Biden administration and Danco about whether FDA policies allowing mail delivery of abortion pills violate the Comstock Act — an 1870s-era law that bans people from sending or receiving “lewd” materials, including anything that could be used in an abortion.

Anti-abortion groups want a future GOP president to invoke the long dormant law to effectively ban abortion nationwide, arguing that the law prohibits sending or receiving not only abortion pills, but anything used for a surgical abortion, including shipments to clinics and hospitals.

Prelogar argued that the Justice Department issued a formal opinion asserting that Comstock does not prohibit the mailing of abortion pills, and that it would have been illegal for the FDA to allow Comstock to shape the agency’s policies around mifepristone or any other drug. The statutes are “very clear that the only thing FDA can take into account for restrictions are safety and efficacy concerns,” she said.

Danco attorney Jessica Ellsworth was even blunter when asked by Thomas if the FDA or her company violated Comstock.

“I think this court should think hard about the mischief it would invite if it allowed agencies to start taking action based on statutory responsibilities that Congress has assigned to other agencies,” she said.

“A rash of universal injunctions”

The case aimed at rolling back availability of the abortion pill in the U.S. ran headlong into formidable legal adversary: growing concern about the ability of individual federal court judges to issue orders that amount to nationwide blocks on federal government policies and impact individuals not before the court.

It’s a phenomenon that has been decried by officials from the last three presidential administrations who’ve seen a slew of policies stymied by such orders. It has also resulted in wave after wave of emergency applications to the Supreme Court, causing its so-called shadow docket to bulge at the seams.

“We've had, one might call it, a rash of universal injunctions,” 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 federal government action.”

That argument picked up support from justices across the court’s ideological spectrum. “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’?” asked Chief Justice John Roberts, a conservative who is nonetheless now seen as the ideological center of the court.

Speaking from the court’s liberal wing, Jackson queried why “no one else in the world can have this drug or no one else in America should have this drug in order to protect your clients?”

Hawley gave the same answer, that it would be “impracticable” for a court to fashion protections for her clients without altering the national rules governing access to mifepristone.