SCOTUS Likely to Reject Abortion Pill Challenge

( – On March 26, the Supreme Court heard oral arguments in a case brought by the Biden administration seeking to overturn a 5th Circuit Court of Appeals decision rolling back the FDA’s 2016 and 2021 actions increasing access to mifepristone, a drug used to induce an abortion. Recent reports indicate that the justices appeared likely to reject the challenge to the continued access to the abortion pill.

SCOTUS had three separate questions to consider during the hearing. They needed to determine if the challengers had legal standing and the right to sue and whether the 5th Circuit correctly rolled back the FDA’s previous changes to the accessibility of mifepristone.

Lastly, the justices need to evaluate whether the appeals court should have waited for the district court to develop the record, including allowing the FDA to address their concerns about the 5th Circuit’s decision to enter a sweeping preliminary injunction.

Solicitor General Elizabeth Prelogar argued on behalf of the FDA and attorneys for Danco, a company that manufactures a branded version of mifepristone, addressed the court on the company’s behalf. A conservative Christian legal advocacy group called Alliance Defending Freedom represented the plaintiffs, several individual physicians and four groups of doctors who objected to abortion on moral grounds.

Court watchers observed that the justices appeared hung up on the first part of the analysis, whether the plaintiffs had standing to bring the lawsuit in the first place since the FDA’s rules didn’t require them to prescribe mifepristone. The US District Court for the Northern District of Texas ruled that they did since they might have to treat a patient for side effects from using the abortion pill, and the 5th Circuit concurred.

However, seven of the justices appeared to disagree with the Texas and 5th Circuit court’s findings. For example, conservative Justice Kavanaugh weighed in at one point while questioning the lawyer for the plaintiffs. “Under federal law… doctors [can’t] be forced… to perform or assist in an abortion, correct?” he asked. Fellow conservative Justice Amy Coney Barrett asked other similar questions.

Justices Samuel Alito and Clarence Thomas indicated they believed the plaintiffs had standing. However, the other justices indicated their belief that the 5th Circuit’s nationwide rollback of the FDA’s actions constituted overreach. Conservative Justice Neil Gorsuch said he thought the case represented a “prime example” of turning a small case into a “nationwide legislative assembly” on a simple FDA rule change.

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