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4 points to remember from the arguments about the abortion pill

A majority of the Supreme Court appeared inclined Tuesday to reject an attempt to sharply limit access to abortion pills.

During about 90 minutes of debate, most of the justices appeared doubtful that the plaintiffs, who do not prescribe abortion pills or regularly treat abortion patients, even had standing to challenge their decision. The judges, including several from the conservative majority, questioned whether the plaintiffs could demonstrate that they suffered the moral harm they claimed to suffer from the availability of the pill, mifepristone.

The case focuses on whether changes made by the Food and Drug Administration in 2016 and 2021, which expanded access to the drug, should be reversed.

These changes allowed patients to obtain mifepristone prescriptions via telemedicine and receive abortion pills through the mail, significantly increasing the availability of medication abortion.

Several judges questioned the remedy sought by the plaintiffs: applying nationwide restrictions to the drug in a case that would have far-reaching implications because it would be the first time a court has questioned regulatory authority of the FDA.

“This case appears to be a prime example of turning what could be a small lawsuit into a national legislature over an FDA rule or other federal government action,” said Justice Neil Gorsuch, appointed by President Donald Trump. J. Trump.

Here are some points to remember:

To have standing, plaintiffs must demonstrate that they suffer concrete harm as a result of the policy or action they are challenging in court. In this case, the plaintiffs, a group of doctors and anti-abortion organizations, say they suffer moral harm because patients who take abortion pills could then seek treatment in the emergency rooms of the hospitals where some of these people work. doctors.

Solicitor General Elizabeth B. Prelogar, defending the government, said the plaintiffs were “not within 100 miles of the types of circumstances this court has previously identified” as grounds for standing. She cited the fact that doctors do not prescribe abortion pills and are not required to treat women who take them. More importantly, she highlighted the fact that because serious complications from abortion pills are very rare, these doctors did not often encounter a woman who had suffered a serious complication requiring treatment.

The plaintiffs’ attorney, Erin Hawley, countered by saying doctors had treated patients on abortion pills in emergency rooms. She cited the written statements in the cases of Dr. Christina Francis and Dr. Ingrid Skop.

Judge Amy Coney Barrett questioned whether these doctors provided examples of “actual participation in the abortion to end the life of the embryo or fetus.” She added: “I’m not reading Skop or Francis to say they’ve ever been involved in this. »

The justices also questioned whether anti-abortion organizations had standing. These organizations claim they are being harmed because, in order to challenge the abortion pill, they have had to divert resources from other advocacy efforts.

Justice Clarence Thomas seemed skeptical of the claim, saying that having to prioritize how an organization spends its time and money would apply to “anyone who is aggressive or vigilant about taking legal action.” “. Simply using resources to defend their position in court, you now say, causes harm. This looks easy to make.

Federal conscience protections allow doctors and other health care providers to refuse to provide care that they object to for moral or religious reasons. In many hospitals, doctors register their conscientious objections in advance so that they are never asked to participate in the care they object to.

Lawyers for the government and a mifepristone maker, Danco Laboratories, said that if anti-abortion doctors encountered an abortion patient, they could easily invoke the protection of their conscience and assign the matter to another doctor who did not would have no moral objections. The plaintiffs are “individuals who do not use this product, do not prescribe it and have a right, in conscience, not to treat anyone who has taken this product,” said Jessica Ellsworth, an attorney representing Danco.

Ms Hawley said there were sometimes cases in emergency services where complainants were not given time to withdraw, forcing them to “choose between helping a woman whose life is in danger and violating their conscience “.

Justice Ketanji Brown Jackson said there was “a disconnect” between what anti-abortion doctors claim to have experienced and the cure they seek. “The obvious, logical remedy would be to grant them an exemption, so that they would not be required to participate in these proceedings,” Justice Jackson said.

Noting that such a remedy already exists in the form of conscience protections, she said: “So I guess what they’re asking for in this lawsuit is more than that. They say: “Because we object to being forced to participate in this procedure, we are requesting an order prohibiting anyone from having access to these medications.” » »

Judge Barrett asked about the plaintiffs’ contention that the Emergency Medical Treatment and Labor Act, or EMTALA, which requires hospital emergency departments to treat patients with urgent medical problems, would override doctors’ conscientious objections and force them to treat patients who have had abortions. pills anyway. Ms. Prelogar said that would not happen because EMTALA applies to hospitals, not individual doctors, so doctors with moral objections could opt out.

Many regulatory policy experts and pharmaceutical industry executives have said that if the court decides to undermine the FDA’s scientific expertise, it would deter companies from developing new drugs and ultimately harm patients who don’t have access to them. not these medications. They say it could also undermine the regulatory authority of other government agencies.

Several judges have questioned this question. “Do you have any concerns about judges analyzing medical and scientific studies? Judge Jackson asked Ms. Ellsworth, the manufacturer’s lawyer. Ms. Ellsworth said that was a concern, pointing out that two studies that the plaintiffs had cited to show that mifepristone was dangerous had recently been retracted.

“That’s why the FDA has several hundred pages of analysis in its archives about what the scientific data has shown,” Ms. Ellsworth said. “And the courts are simply not in a position to analyze and question that.”

The Comstock Act, enacted in 1873, prohibited the mailing of medications that could be used to terminate a pregnancy.

Justices Alito and Thomas asked whether the law, which has not been used in decades and has been restricted by the courts and Congress, applies as the plaintiffs claim.

“The Comstock provisions are not the responsibility of the FDA,” said Ms. Prelogar, who said the FDA’s responsibility is to determine the safety and effectiveness of drugs and regulate them. She also pointed out that the Justice Department issued an opinion that the Comstock Act only applied if the sender intended the recipient of the documents to “use them unlawfully.”

Ms Ellsworth warned of what could result if the court decides on the application of the law. “I think this court should think seriously about the harm it would cause if it allowed agencies to begin taking actions based on statutory responsibilities that Congress has assigned to other agencies,” she said. declared.

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