The Supreme Court Abortion Pill Case: Legal Challenges and Implications

TFD – Delve into the complex legal landscape of the Supreme Court case on abortion pills, where doctors and activists challenge regulatory decisions, shaping the future of abortion access in the United States.

The focus of the high-profile Supreme Court case, which could potentially restrict millions of Americans’ access to the abortion pill mifepristone, is primarily on 11 pro-abortion physicians and activists who claim that their work has been disrupted by patients who have developed complications from the medication.

In Indiana, one of the physicians serves as a Republican state senator. Another person represents themselves as an authority on a “abortion pill reversal” technique that a reputable medical organization called “unproven and unethical.” A third has been without a medical license for many years.

The majority of the physicians directly involved in the case—which the Supreme Court will hear on Tuesday—have a long history of opposing abortion. None of the physicians who filed declarations recommend mifepristone, and none of them have described a situation in which they were forced to conduct an abortion on a patient who experienced problems after using the medication.

The Supreme Court is being asked whether the Food and Drug Administration overreached its authority by making mifepristone easier to obtain, such as by expanding who may prescribe the drug and allowing it to be dispensed through the mail, in what has emerged as the most significant abortion case since the overturning of Roe v. Wade in 2022.

However, the court must first determine whether the doctors and medical groups that brought the lawsuit have suffered enough harm from the medicine to warrant a right of action, a legal doctrine called as “standing.” Renowned Supreme Court litigator Adam Unikowsky has questioned whether the groups even come close to satisfying that standard.

The doctors have presented a lot of hazy, at best, data to support their claims that the availability of mifepristone is hurting them, which has given the case tenuous legal support.

According to Unikowsky, a former clerk of the late conservative Justice Antonin Scalia, “They’re not forced to prescribe it.” “The basis for their theory of standing is the fact that other doctors have prescribed the drug to other people.”

The doctors state in a number of declarations submitted early in the case that they occasionally have to treat patients who are experiencing drug-related complications, like heavier-than-expected bleeding, and that treating these women based on priority has a significant negative influence on their practices and the care of other patients. Some claim they or their coworkers have been made to carry out post-medication procedures against their moral convictions.

Dr. Christina Francis, an OB-GYN from Indiana and the CEO of one of the anti-abortion organizations involved in the case, testified in court that although she felt “forced to participate in something that she did not want to be a part of,” a colleague had to perform a “emergency abortion” on a patient who arrived at the emergency room in 2022 due to her unstable condition.

Prominent medical organizations including the American Medical Association have informed the Supreme Court that mifepristone is “very safe.” Pregnant women had to make several in-person appointments at a doctor’s office when the FDA initially approved the medication more than 20 years ago. Later, the FDA did away with that mandate.

Francis asserted that “a significant increase in women coming into our emergency rooms has resulted from the removal of that requirement.” Francis said that allegation was anecdotal and that it sometimes take years for these changes to show up in studies that are published.

Francis stated, “The issue we have is that women are coming into our emergency rooms with incomplete abortions.” “We are being asked to then finish a process that we find morally repugnant.”

A recent study examined whether medication abortion delivered through telemedicine could be just as safe and successful as medication abortion administered in a clinic.

Arguments centered on the anti-abortion physicians and activists at the center of the mifepristone case will almost probably raise these kinds of issues. Some justices may be able to avoid the more contentious political questions brought up by the lawsuit thanks to those probes.

Erik Baptist, an attorney for the doctors and groups, downplayed the concerns over standing, pointing out that the lawsuit had been permitted to advance in two lower courts. Baptist is senior counsel with Alliance Defending Freedom, a conservative legal advocacy organization that has recently led several victorious Supreme Court cases.

Baptist stated, “As far as I know, no other federal agency action has openly and explicitly forced doctors to violate their conscience rights, divert their resources, and suffer emotional harm.”

“Our doctors are more than happy to help them,” he said, “but that’s creating a concrete harm for them and they have every right to sue the federal government for that.” This is in response to women visiting hospitals.

Nearly two thirds of US abortions are medication-assisted, thus any decision by the supreme court that increases the difficulty of obtaining mifepristone abortion pills may have repercussions for abortion availability in general. Wait times at physical clinics may increase if more women are forced to have abortions in person. These clinics are already experiencing a spike in business from patients who reside in states where abortion is illegal.

FDA supporters contend that the laxer regulations improve access to abortion for patients in remote areas and safeguard the privacy and safety of those seeking an abortion by allowing mifepristone to be prescribed via telemedicine.

Thinking about “the messenger”

Five months following the Supreme Court’s historic Roe v. Wade decision, a legal challenge to the government’s regulation of mifepristone was filed.

Four individual doctors and a number of anti-abortion medical groups filed the complaint, claiming that the FDA violated the law when it approved the drug in 2000 and then moved to increase access to the medication.

Some of the doctors’ names will be recognizable to those who have followed the protracted legal disputes surrounding abortion over the years. Texas OB-GYN Dr. Ingrid Skop is vice president of the anti-abortion advocacy group Charlotte Lozier Institute and frequently testifies on the topic of abortion. She has also been involved in several cases pertaining to the procedure.

“I have cared for at least a dozen women who have required surgery to remove retained pregnancy tissue after a chemical abortion,” Skop told the district court in the current case in a declaration submitted on behalf of one of the anti-abortion groups.

The American Civil Liberties Union pointed out that other courts had previously rejected the expert witness testimony provided by several of the doctors in other instances in a scathing brief they filed earlier this year.

A trial court in Florida in 2022, for instance, found Skop’s testimony on abortion safety “inaccurate and overstated.”

Skop claimed to have “delivered over 5,000 babies in over 30 years” of experience in a statement to CNN.

“I stick to facts and research, not ad hominem attacks, as someone who has treated many women harmed by these abortion drugs,” the woman declared. “Mainstream medical groups that advocate for abortion through all nine months for any reason disregard any data that contradicts their bias against abortion on demand.”

According to the ACLU, Dr. Jeffrey Barrows, a different physician who made a statement in the case, hasn’t had a medical license in over ten years. A request for comment from Barrows, a senior vice president of the Christian Medical & Dental Associations, was not answered.

The FDA is being supported by the ACLU Reproductive Freedom Project, whose senior staff attorney Julia Kaye stated that “the lower courts should have considered who the messenger is.”

According to Kaye, “people cannot file lawsuits under the Constitution simply because they disagree with a government policy that does not directly affect them.”

One of the individual plaintiffs in the lawsuit, Dr. Tyler Johnson, is a Republican state senator from Indiana who actively supported the legislature’s adoption of the stringent abortion prohibition that became operative last year.

Another individual plaintiff, Dr. George Delgado of California, has long supported a method of undoing the effects of abortion medicine that has been deemed “not based on science” by the American College of Obstetricians and Gynecologists. These physicians are among those who provided almost eighty pages of statements, which were largely relied upon by the courts to determine that the plaintiffs had the right to contest the medication.

Requests for comments were not answered by Johnson or Delgado.

Doctors’ testimony was the basis for rulings made by lower courts.

The Alliance for Hippocratic Medicine, the major medical group in the case, was incorporated in Amarillo, Texas, months before it filed the complaint. This gave it the opportunity to select a court where it would be assigned to US District Judge Matthew Kacsmaryk, a conservative.

In a 67-page ruling last year, Kacsmaryk declared the FDA’s decades-old approval of mifepristone to be void. The “enormous pressure and stress” coping with the drug’s problems inflicted on their practices prompted the judge to rule that the doctors and groups that filed the complaint had standing.

The 5th US Circuit Court of Appeals overturned his decision, finding that further FDA efforts to restrict access to the medication should be stopped even if the statute of limitations for contesting the agency’s original approval of mifepristone had probably passed. The 5th Circuit’s ruling would have significantly increased the difficulty of obtaining mifepristone.

Both the lower courts and the doctors’ and activists’ declarations served as the foundation for the initial complaint. The Fifth Circuit quoted extensively from Skop and Francis.

However, in several cases, those courts omitted important details. For example, the 5th Circuit observed that Francis saw a patient who had purchased mifepristone online. It omitted a portion of her statement stating that the patient was informed the medications originated in India, implying that they might have been available even if the FDA had not approved them.

While it deliberated the matter, the Supreme Court put the ruling of the appeals court on hold.

Can physicians demonstrate “concrete harm”?

The appeals court used the FDA’s easing of access to mifepristone as justification for second-guessing the agency’s strategy, stating that there was a “statistical certainty” that the challengers would eventually have to treat more patients with difficulties.

Francis added, “It is ridiculous that women are not being seen in person before getting these drugs, which the FDA acknowledged were high-risk drugs.” Patients are not being thoroughly checked by a physician for potential problems.

Skeptics of the anti-abortion doctors warn that their theories would toss open the doors to a flood of new lawsuits – from both liberal and conservative groups – over countless other decisions made by the federal government.

According to Unikowsky’s analysis for CNN, “the theories of standing in this case really suggest that any rule that theoretically has some impact of safety can be challenged by activists.” In doing so, “the ability of ideological organizations to challenge almost anything the government believes would be dramatically expanded.”

Recent decisions have been characterized by the conservative majority on the Supreme Court’s standing doctrine. This has included a successful challenge to President Biden’s student loan forgiveness program and attempts to remove protections for LGBTQ Americans. Conservative colleagues have come under fire from liberal dissenters for allegedly adopting standing theories that diverge greatly from the standard legal guidelines about suitability.

However, in other instances—such as a significant immigration case from last year in which Texas and Louisiana attempted to prevent the federal government from designating some immigrants for deportation over others—the court upheld the Biden administration’s policies because the opponents lacked standing.

In an attempt to join the doctors in challenging the FDA in the mifepristone case, three states led by Republicans attempted to intervene. Although they were successful in the district court, their request to intervene was denied by the Supreme Court. Some outside observers interpreted the maneuver as an attempt by the opponents of the abortion pill to strengthen the legal flaws in their lawsuit.

Baptist stated that the states’ participation in the lawsuit was approved by Alliance Defending Freedom, who stated that “they have every right and every interest to participate in this litigation.”

The states virtually assured the Supreme Court in their briefs that, should the court finally rule that the doctors are not permitted to suit, they will promptly submit a similar case about mifepristone access. This implies that the justices might quickly be faced with the same issues, but with a different group of parties, if the Supreme Court rules in the ongoing dispute involving standing.

The states claimed that a decision of this kind “would nearly guarantee this case comes before this court again… within months.”