Supreme Court Mifepristone Oral Arguments: Live Updates On Abortion Pill Hearing

We are concluding our live coverage of Tuesday's oral arguments at the Supreme Court. Please check HuffPost.com for further updates on the case.

While SCOTUS heard oral arguments today, Democratic Reps. Dan Goldman (N.Y.) and Jasmine Crockett (Texas) introduced the "Abortion Care Awareness Act," which aims to increase accurate information about abortion services.

“The flood of anti-abortion disinformation shared by crisis pregnancy centers poses a direct danger to women seeking reproductive health care across the country,” Goldman said in a release.

"We must help women and families seeking access to life-saving reproductive healthcare, including abortion care, and help ensure they receive accurate information and resources to make informed medical decisions," Crockett said in a statement. "Fear and confusion are the most powerful tools used by forced birth extremists."

The court has finished hearing arguments. The hearing ended with a rebuttal from Prelogar, who said that the plaintiffs failed to prove any harm from the FDA’s updated mifepristone rules or prove they have the standing to sue the FDA.

Erin Hawley, of the anti-abortion Alliance Defending Freedom, just argued that restricting mifepristone is justified not only to avoid the “narrow” harm of anti-abortion doctors participating in abortions — the result of extremely rare emergency room visits by patients who took the pill — but also a “broader” concern with being “complicit” in that process.

That complicity, which Hawley explained under questioning from Justices Kagan and Jackson, includes “removing an embryo or fetus — whether or not they’re alive — as well as placental tissue” Hawley said. She separately described it as “completing ... an elective abortion.”

Justice Neil Gorsuch asked Alliance for Defending Freedom’s senior counsel Erin Hawley why this lawsuit — the standing of which justices have repeatedly questioned — should have such national implications.

“This case seems like a prime example of turning a small lawsuit into a nationwide legislative assembly on an FDA rule or any other federal government action,” Gorsuch said.

Justice Elena Kagan sounded very dubious when asking plaintiffs’ attorney Erin Hawley to explain why her clients have standing to bring their case, saying the case “sounded very probabilistic to me.” Courts generally do not allow lawsuits to be brought unless the plaintiff can demonstrate that they were harmed by the entity they are suing — they typically do not allow pure hypotheticals.

“You need a person. You need a person to come in and meet the court’s regular standing requirements. So who’s your person? I know you have seven of them,” Kagan asked, referring to the anti-abortion physicians who joined the case. Hawley named two of them, including Dr. Christina Francis, who said her colleague had to perform a dilation and curettage, or D&C, abortion procedure that Francis objected to personally.

Kagan said that usually doctors make their personal objections known beforehand.

"That may be harder, they may be easier in a particular context, but most hospitals have mechanisms in place, have routines in place," Kagan said.

Jackson asked Hawley to relay a specific instance of doctors wanting to object to the use of mifepristone but being unable to. Hawley says she can’t, seemingly claiming that the doctors who want to object can’t because emergency medicine is complicated.

“Respondent doctors don’t necessarily know until they scrub into that operating room whether this may or may not be abortion drug harm,” she said. “It could be a miscarriage, it could be an ectopic pregnancy, or it could be an elective abortion, your honor.”

(Note: There is no way to medically distinguish between an elective abortion and a miscarriage, unless doctors run tests looking for mifepristone or misoprostol in the system.)

Jessica Ellsworth, who represents the drugmaker behind mifepristone, Danco, just called out District Judge Matthew Kacsmaryk, who last year not only cited studies on mifepristone that were later retracted, but also cited a study based on years-old anonymous blog posts about the personal experiences of random people with abortion.

“You have a district court that among other things relied on one study that was an analysis of anonymous blog posts. You have another set of studies that he relied on that were not in the administrative record and would never be, because they post-date the FDA decisions here. They have since been retracted for lack of scientific rigor, and for misleading presentations of data. Those sorts of errors can infect judicial analyses precisely because judges are not experts in statistics, they are not experts in the methodology used in scientific studies for clinical trials.”

We discussed the retracted studies Ellsworth mentioned below. I also covered the “anonymous blog post” study that Kacsmaryk cited last year. In sum, random people anonymously responding to subway advertisements and billboards for the website AbortionChangesYou.com ending up cited in a court decision 13 years later. Read that coverage here.

Erin Hawley, the lawyer representing the Alliance for Hippocratic Medicine, which brought the lawsuit, is now fielding questions. Hawley is married to Sen. Josh Hawley (R-Mo.).

Justice Samuel Alito suggested to Jessica Ellsworth, an attorney for Danco Laboratories, that her client was upset because the case had the potential to hurt its profits, saying that if the drug’s availability is upheld, “You’re going to make more money.”

“The injury is that we are prevented from selling our product in line with the FDA’s scientific judgment abut the safe and efficacious use of the drug,” Ellsworth said.

“Do you think the FDA is infallible?” Alito asked.

“No, your honor. And we don’t think that question is really teed up in any way in this case,” Ellsworth responded.

Jessica Ellsworth, attorney for the makers of mifepristone, answered questions next. She took one from Thomas asking how advertising and mailing the medication does not violate the Comstock Act, a set of laws that criminalized the mailing of “obscene” materials, including items related to sexual health and contraception.

Ellsworth responded that the act hasn’t been enforced in about 100 years.

Justice Ketanji Brown Jackson just called out what she said was a “significant mismatch” between the injury claimed by plaintiffs in this case — doctors who object to abortion — and their requested remedy, rolling back access to mifepristone for everyone. There is already law in place for doctors who have conscience objections to medical procedures like abortions, Justice Jackson noted.

“They’re saying, 'Because we object to having to be forced to participate in this procedure, we’re seeking an order preventing anyone from having access to these drugs at all,'” she said. “I guess I’m just trying to understand how they could possibly be entitled to that, given the injury that they have alleged.”

Prelogar agreed, saying “the relief that they’re seeking would dramatically alter the approved conditions of use for mifepristone and affect women all around the nation simply because of this conscience injury that’s already directly addressed by other protections in federal law.”

Justice Barrett is concerned about how the gestational age of a pregnancy is determined. Does providing mifepristone via mail (and therefore eliminating in-person visits), she wondered, lead to more mistakes in figuring out if a fetus is, say, 10 weeks old versus 7 weeks?

Prelogar counters that the “premise of the question is wrong.” Even with in-person visits going back to the drug’s approval in 2000, she says, doctors have never required an ultrasound or anything similar to determine gestational age.

Justice Samuel Alito was the first to bring up the Comstock Act, an 1873 law that states it’s illegal to send “obscene” materials in the mail, including drugs that induce abortions. This is a key part of the anti-choice argument because it would prohibit increasingly common telehealth medicine that allows people in states where abortion is restricted to still access medication abortion in the mail.

“Shouldn't the FDA have at least considered the application of 18 USC 1461?” Alito asked U.S. Solicitor General Elizabeth Prelogar.

Prelogar replied that the Comstock provisions “don’t fall within FDA’s lane.” Alito continued to push, adding that the Comstock Act is a “prominent provision” and “it’s not some obscure subsection of complicated obscure law.”

“Everyone in this field knew about it, shouldn't they at least address it? You have answers to the arguments that are made on the other side. Shouldn’t the FDA have at least said, ‘We’ve considered those,’ and provided some kind of an explanation?”

The Justice Department maintained prior to today’s arguments that the Comstock Act doesn’t apply here because no one can really know how a drug will be used when it’s sent via mail.

Justice Elena Kagan asked whether this case is the only time a court restricted access to a drug by overriding an FDA decision. It is, Prelogar said.

U.S. Solicitor General Elizabeth Prelogar shot down the claim brought up by Justice Samuel Alito that the FDA’s 2021 expansion of mifepristone access — allowing it to be obtained via telehealth appointments — led to an uptick in emergency room visits.

She acknowledged that studies showed an increase in emergency room visits, but pointed out “that didn’t equate to additional serious adverse events.”

“At the end of the day, the FDA carefully parsed those studies. It made specific determinations about the results to be gleaned with respect to safety and efficacy, it fully explained its decision-making and I think it falls well within the zone of reasonableness under arbitrary and capricious review,” Prelogar said.

Supporters of reproductive rights who rallied in front of the Supreme Court on Tuesday said they couldn’t believe how scary things have gotten in the country.

“I’m 70 years old and we were talking about this when I was in college, and that's insane to me. That, you know, 50 years later we are still fighting this fight,” said Jane Amgarola, a retired educator from Washington, D.C.

“It's getting, you know, closer and closer to 'Handmaid's Tale,'” she added.

Susan McDonnell, from Richmond, Virginia, lamented that the rights women gained decades ago are being stripped away by the evangelical movement.

“We saw our mothers fight for these rights, and now we're back here again and have daughters and kids we're worried about, and I just feel like we're going completely backwards and we're putting the Bible and religious beliefs before constitutional rights, and it's a sad day. It's a scary time,” she said.

One of the plaintiffs’ arguments for rolling back mifepristone access is that patients may come in with complications from having taken the drug, and a doctor who objects to abortion on moral grounds may have to take care of them.

U.S. Solicitor General Elizabeth Prelogar shot that down in response to a question from Justice Amy Coney Barrett. She said that hospitals take into account whether doctors on staff have any conscience objections when scheduling.

“We are not aware of any situation where there has been that kind of direct conflict between EMTALA and conscience protection,” Prelogar said. (EMTALA stands for Emergency Medical Treatment and Labor Act, the law that ensures hospitals provide care for emergency patients regardless of their ability to pay.)

Prelogar just shut down a hypothetical from Justice Alito, about a hypothetical anti-choice doctor in an emergency room who is the only person available to respond to someone having an emergency mifepristone complication. “And so as a result, in order to save her life, the doctor has to abort a viable fetus. Now would that doctor then have standing to seek injunctive relief? Or would you say that’s too speculative, this was like being struck by lightning, and it’s not sufficiently likely that this is going to happen to this doctor again."

Mifepristone, which is generally taken with misoprostol, is both extremely effective and extremely safe, years of studies and use have shown.

Prelogar acknowledged that the doctor's case in Alito’s hypothetical would represent past harm, and would potentially be able to be brought to a court. But, she made clear, there was simply no record of anything like that ever happening.

“That situation has never come to pass,” she said. “Respondents haven’t identified any incident in more than 20 years that mifepristone has been available on the market that resembles that kind of hypothetical situation. And so yes, our view would be it is unduly speculative. And you have to think about all of the events that would have to transpire to get to that moment.”

Fielding a question from Justice Clarence Thomas on whether the plaintiffs have Article III standing to bring their case — a key issue at hand — U.S. Solicitor General Elizabeth Prelogar responded: “If the question is whether there would be individuals who generally oppose abortion who would have standing and want to challenge the FDA’s actions, the answer to that is no, but the reason is because those people aren’t regulated in any relevant way under FDA’s decisions here.”

“They stand at a far distance from the upstream regulatory action they are challenging,” Prelogar said.

She named prescribing physicians or competing drug manufacturers as parties that could potentially have standing — not the group of anti-abortion doctors that brought the case.

“We don’t think [the plaintiffs] come within 100 miles of the kind of circumstance this court has previously identified as non-speculative harm that can create the kind of cognizable injury for forward-looking relief,” she said.

Today's case, known as FDA v. Alliance for Hippocratic Medicine, centers on whether the Food and Drug Administration overlooked health and safety issues when it loosened restrictions around mifepristone, one of the two drugs used in medication abortion, in 2016 and 2021. The FDA approved mifepristone in 2000, and the medication has since been used by nearly 6 million people in the U.S., according to the department.

The ruling could roll back critical access to mifepristone, which is generally prescribed as part of a two-drug regimen alongside misoprostol for abortion and miscarriage care through 10 weeks of pregnancy in the U.S.

If the court sides with abortion opponents, mifepristone could be prohibited from being sent through the mail and distributed at large pharmacy chains, even in states where abortion is legal. A ruling for the anti-choice movement could also restrict the use of mifepristone from its current approval of 10 weeks to seven weeks, and end telehealth visits where abortion pills are prescribed.

The decision is likely to come out sometime in late June.

Two studies cited by a U.S. district judge in Texas earlier on in the mifepristone fight were subsequently retracted in February.

Judge Matthew Kacsmaryk, who initially ruled on the case, cited the studies last year in an April 2023 opinion suspending the FDA’s 2000 approval of mifepristone. The studies were subsequently retracted by the academic publisher Sage, along with one other study by the same researchers. Sage cited several undisclosed conflicts of interest by the studies’ authors — their connections to anti-abortion advocacy groups — as well issues with the studies that it said demonstrated a “lack of scientific rigor.”

Last week, the president of the watchdog group Accountable.US, Caroline Ciccone, said of the retractions, “It should be hugely impactful that the house of cards on which this legal argument was built is crumbling under their feet.”

HuffPost’s Sara Boboltz covered those retractions in February (and she contributed to this entry). Read that story here.

Biden and Harris will be in North Carolina this afternoon, and Harris plans to focus her remarks on abortion, White House officials said in a briefing yesterday.

You can count on Harris to mention oral arguments in the Supreme Court case. You can also count on Harris to talk about why reproductive rights are so important in North Carolina -- and not just because it’s a key swing state for the 2024 presidential election.

From my article about today’s event:

Reproductive rights have been heavily contested in North Carolina, as they have been across the country, since the Supreme Court in 2022 overturned Roe v. Wade, the 1973 decision that had made access to abortion a federal right. A new state law, enacted after Republicans in the legislature overrode [Democratic Gov. Roy] Cooper’s veto, has introduced a series of restrictions and bans the procedure under most circumstances after 12 weeks of pregnancy.

In November, abortion rights advocates in the state hope to make gains in the legislature and, no less important, to defeat GOP gubernatorial nominee Mark Robinson, an outspoken right-wing politician who has called abortion a “scourge” and said he wants to push the limit on abortion to six weeks.

President Joe Biden and Vice President Kamala Harris have put an emphasis on abortion rights ahead of the 2024 presidential election.

In this year's State of the Union address, Biden confronted Supreme Court justices over the 2022 Dobbs ruling and argued he'd work to "restore Roe v. Wade as the law of the land again" if "the American people send me a Congress that supports the right to choose."

Earlier this month, Harris became the first vice president to visit an abortion clinic.