Reproductive rights once again took center stage at the Supreme Court on Tuesday, marking the first significant discussion in nearly two years, as justices deliberated over the pivotal case of FDA v. Alliance for Hippocratic Medicine.
At the heart of the debate is the future of mifepristone, a crucial medication used in over 60 percent of abortions in the United States, as part of a two-drug regimen. The Supreme Court is weighing the possibility of restricting access to this medication.
The Alliance for Hippocratic Medicine, a group comprising anti-abortion doctors among others, has challenged the Food and Drug Administration’s (FDA) approval of mifepristone. They argue that the FDA did not adequately address safety concerns when it first approved the drug in 2000, nor when it eased certain restrictions in 2016 and again in 2021. The Justice Department, representing the Biden administration, counters that the plaintiffs lack standing in this case since they have never prescribed the drug. Danco Laboratories, the manufacturer of mifepristone, warns that siding with the plaintiffs could deter the pharmaceutical industry due to the potential for a chilling effect.
During Tuesday’s oral arguments, several key points emerged:
1. The government contends that the doctors who initiated the lawsuit lack standing. Supreme Court Justice Clarence Thomas inquired about who, then, would have the standing to challenge FDA actions. Solicitor General Elizabeth B. Prelogar argued that the coalition of anti-abortion doctors is too removed from the regulatory actions they are contesting, as they neither prescribe nor take mifepristone.
2. The question of who has the standing to sue the FDA was a recurring theme. Justice Samuel A. Alito Jr. probed for a more specific answer, questioning whether states that intervened in the case have standing, to which Prelogar responded negatively.
3. The Comstock Act of 1873, which prohibits the mailing of “obscene materials” and has been interpreted to include abortion medications, was referenced multiple times. Justice Alito questioned whether the FDA should have considered the Comstock Act’s applicability, a suggestion Prelogar dismissed, indicating that the Act’s provisions do not fall within the FDA’s purview.
4. The responsibility of determining the safety of the abortion pill was discussed, with Justice Sonia Sotomayor highlighting that the FDA is tasked with assessing safety risks, including any increase in emergency room visits due to mifepristone use.
5. The scope of the plaintiffs’ request was scrutinized, with Justice Neil M. Gorsuch noting the potential for a small lawsuit to precipitate a nationwide change in FDA rules. Justice Ketanji Brown Jackson expressed concern over the mismatch between the plaintiffs’ alleged injury and the extensive remedy they seek, suggesting that an exemption for the doctors might be a more appropriate solution.
These discussions underscore the complexities and high stakes involved in the case, as the Supreme Court navigates the intricate balance between regulatory oversight, medical safety, and reproductive rights.