What’s the Latest in the SCOTUS Abortion Pill Case and What Comes Next?

The Supreme Court, which is made up of a 6-3 conservative majority, heard oral arguments on Tuesday for the Biden administration’s appeal of lower court rulings that restricted access to abortion pill mifepristone. The plaintiffs argue that the Food and Drug Administration has violated federal law, following the FDA’s move to approve wide distribution of abortion pill mifepristone. The ruling will decide whether to restrict access to a widely used abortion drug — even in states where it is still allowed.

Notably, in the first year following the overturn of Roe v. Wade by the Supreme Court, abortion medication use rose rapidly. Use of medication abortion within the formal health care system in the US has risen from about half, (53%) of all abortions in 2020 to nearly two-thirds (63%) of all abortions in 2023, according to the Guttmacher Institute.

Throughout Tuesday’s hour-long session, the nine justices heard arguments from three separate attorneys. Despite the topic at hand, much of the discussion did not focus on whether the Food and Drug Administration’s decisions to lift restrictions on the drug were unlawful. Instead, the oral arguments focused on standing, the legal threshold plaintiffs must overcome by showing they are being harmed in a way to warrant a court’s intervention, suggesting the court was skeptical of the right to even bring the lawsuit against the Food and Drug Administration to begin with.

Justices both conservative and liberal questioned abortion pill challenging attorneys, led by Erin Hawley representing the abortion pill’s challengers. Hawley was a law clerk to Chief Justice John Roberts during the same term as her now-husband, Republican Sen. Josh Hawley from Missouri. Questions were raised whether this case could open the door to a flood of lawsuits against the FDA. Justice Neil Gorsuch, a conservative member of the court, said the case was a “prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule.”

Conservative Justice Brett Kavanaugh at one point asked whether federal law provides some protections for doctors who object to providing an abortion on moral and religious grounds. Justice Amy Coney Barrett, another conservative, noted the same, that doctors already have the ability to object based on their personal beliefs.

Chief Justice John Roberts questioned abortion pill challengers, saying,“Why can’t the court specify that this relief runs to precisely the parties before the court as opposed to looking to the agency in general and saying agency you can’t do this anywhere?”

“I think this court should think hard about the mischief it would invite if it allowed agencies to start taking action based on statutory responsibilities that Congress has assigned to other agencies.” Jessica Ellsworth, an attorney representing Danco, which manufactures mifepristone.

Possibly suggesting that he was interested in allowing the lawsuit to go forward, Justice Alito asked “is there anybody who can sue and get a judicial ruling on whether what FDA did was lawful? And maybe what they did was perfectly lawful. But shouldn’t somebody be able to challenge that in court?” Justice Thomas was the only other Justice to express similar lines of questioning.