The Shameless Oral Arguments in the Supreme Court’s Abortion-Pill Case

There were times, during the oral arguments on Tuesday in the Supreme Court case about mifepristone, an abortion pill, when the Justices seemed struck by the shamelessness of what the litigants trying to limit access to the drug were demanding. As Justice Ketanji Brown Jackson put it, “I’m worried that there is a significant mismatch in this case between the claimed injury and the remedy that is being sought.” The case, Food and Drug Administration v. Alliance for Hippocratic Medicine, stems from the A.H.M.’s claim that some of its members are anti-abortion doctors who might someday suffer a “conscience injury” as the result of being asked to treat a patient who needed care after taking mifepristone. Such personal objections, the group says, give it what’s known as “standing” to go to court and demand that the F.D.A. rewrite its rules to limit access to mifepristone for everyone—even in states where abortion is legal.

As Jackson pointed out, “the obvious common-sense remedy” would be to provide any such doctors with an exemption—which, as it happens, they already have. Federal law allows doctors to decline to take part in an abortion at any stage. The A.H.M. wants “more than that,” Jackson said. “And I guess I’m just trying to understand how they could possibly be entitled to that.”

She wasn’t the only Justice to wonder. Justice Brett Kavanaugh, who was part of the conservative majority that overturned Roe v. Wade in the 2022 case of Dobbs v. Jackson Women’s Health Organization, had only one question during the oral arguments. He wanted the Solicitor General, Elizabeth Prelogar, who was arguing on behalf of the F.D.A., to confirm that federal law exempts doctors from having to participate “or assist” in abortions. She did (noting that the fact that federal funds go to health-care providers gives the government that prerogative) and said that many state laws add to those protections. Justice Amy Coney Barrett followed up to ask if the exemption would apply even to “transfusions or D. & C.s”—dilation and curettages—“after the abortion is otherwise complete because tissue needs to be removed.” Yes, Prelogar said, again.

Barrett’s question was relevant because of the scenarios that the A.H.M. had spun out to try to justify its position. The group was represented by Erin Hawley, who is married to the Republican senator Josh Hawley, of Missouri. (All three lawyers who appeared before the Court on Tuesday—Prelogar, Hawley, and Jessica Ellsworth, who represented Danco Laboratories, the drug’s manufacturer—are women.) Hawley argued that the exemption isn’t good enough, because of the possible “emergency nature” of encounters that the group’s members might have with a hypothetical patient. This is far-fetched; mifepristone is very safe, and Prelogar, citing one study, noted that half of the very small percentage of people who do go to an emergency room after taking it end up needing no treatment at all. (In some cases, they are simply unsure about how the procedure is progressing.) The idea that a complication might occur involving, say, an incomplete abortion that has to be carried to the end, and that there would be any barrier to a particular doctor belonging to the A.H.M. invoking the exemption (a circumstance that hospitals tend to plan for) verges on the fantastical. Perhaps because of that unlikelihood, Hawley seemed to take the position that any post-abortion care would be a problem, too.

To an extent, that claim of outrage may have been made simply to get an anti-mifepristone case before the Court. But it also betrays a certain heartlessness. Hawley envisioned a doctor encountering a patient—who might, for example, be losing blood—and not knowing why that person needed care: “It could be a miscarriage, it could be an ectopic pregnancy, or it could be an elective abortion.” As a result, the doctor couldn’t instantly be sure whether the patient was a person they thought deserved their help—or whether they would rather walk away. The Justices struggled to get Hawley to lay out the limits of what she meant when she said that the doctors could not be “complicit” in the patient’s care. “Handing them a water bottle?” Jackson asked.

At other times, Hawley suggested that the exemption wasn’t sufficient because invoking it would be “stressful.” Days with cases like these were not “why they entered the medical profession.” That position at least has the advantage of suggesting that the doctors might have some qualms about where their ideological or religious position had led them. But it’s far from a basis for forcing the F.D.A. to limit access. As Ellsworth, the Danco lawyer, argued, allowing litigants to challenge F.D.A.-licensed drugs on such attenuated grounds would have consequences beyond abortion, allowing for all manner of challenges and upending the drug-approval system.

The F.D.A. approved mifepristone in 2000. (It had been used in other countries even earlier.) In 2016, the F.D.A. changed the number of clinical visits required for a medical abortion from three, over the course of fourteen days, to a single initial visit. It also approved the drug for use up to the tenth week of pregnancy (the limit had previously been seven). There were further changes in 2021—allowing for a telemedicine clinical visit, and for pharmacies to mail the pills. The A.H.M. has been trying to undo the 2000 authorization and everything that followed it, and thus take mifepristone off the market entirely; so far, it has succeeded in getting a lower court to undo only the 2016 and 2021 changes. That order has been stayed pending the Supreme Court’s ruling.

The possibility of getting a prescription for a medication abortion after a telemedicine appointment has, unsurprisingly, become increasingly important in the wake of Dobbs. Fourteen states have almost entirely banned abortion. In another breathtaking leap, Hawley claimed that the real victims of these prohibitions were, of all people, anti-abortion doctors. She cited statistics from the Guttmacher Institute suggesting that a growing number of people have been compelled to cross state lines to obtain an abortion. Such women, she reckoned, would return to homes far away from their abortion provider, and thus be more likely to “turn E.R. rooms into those follow-up visits”—increasing the likelihood that they would encounter one of the A.H.M.’s morally aggrieved members. Anti-abortion groups might have thought of that before they drove clinics in so many states to close. The building once occupied by the Jackson Women’s Health Organization is now a high-end consignment store.

At one point, when Hawley was dodging Jackson’s questions about the breadth of the remedy she sought, Justice Neil Gorsuch jumped in. “We have before us a handful of individuals who have asserted a conscience objection,” Gorsuch said. “And this case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on—on—on an F.D.A. rule or any other federal-government action.” Gorsuch, a conservative, didn’t seem satisfied by Hawley’s answer, which was, again, to say that the doctors’ options weren’t good and that limiting access was “appropriate.”

Not all the conservative Justices seemed skeptical of the A.H.M. position. Justice Samuel Alito was almost openly hostile to the F.D.A. and to Danco, demanding to know who, if not A.H.M., would be in a position to sue to block the drug if the F.D.A. was wrong about its safety. (One answer was that cases could be brought through the tort system.) And he asked Ellsworth if Danco’s interest in the case is that “you’re going to make more money”—suggesting that the company was just a greedy abortion-pushing profiteer. But on this day, in this case, it seemed that there should be enough Justices, with enough of a sense of how radical the case before them was, to keep women in need of abortion care from being entirely abandoned. ♦