The U.S. Supreme Court heard the case about the regulations around mifepristone, one of a two-step regime for abortion medication, on Tuesday.
FDA v. Alliance for Hippocratic Medicine initially questioned last year whether mifepristone could be on the market. The Alliance, with known ties to anti-abortion groups, claimed the FDA erred in its administrative regulations when it put the drug on the market in 2000. But, when the U.S. Fifth Circuit Court of Appeal heard the case last spring, it ruled more narrowly that the FDA had to return to earlier regulations dating back to 2016 rather than abolish FDA rules around the drug altogether.
U.S. Department of Justice’s Solicitor General Elizabeth Prelogar argued that the Alliance lacked standing to bring the case forward, as they could not prove harm or even potential harm. She said that the doctors who brought the claim, stating that they would suffer harm if they had to perform an abortion in an emergency room due to complications after taking mifepristone, were protected by federal conscientious objection rules. She said that the likelihood of the two doctors ever having to administer to a patient suffering complications from mifepristone was too farfetched.
“Past harm hasn’t happened and future harm is so speculative and turns on so many links of the chain,” she told the justices.
More than one justice questioned who, exactly, has experienced harm in order to justify the lawsuit. Justice Amy Coney Barrett said the plaintiffs’ affidavits “read more like conscientious objections to end the life of the embryo or fetus and I don’t read [that they] have ever participated in that.”
Erin Hawley, the lawyer for the Alliance Defending Freedom, which brought the suit on behalf of the Texas-based medical group, said the FDA’s elimination of dispensing mifepristone through an in-person visit has increased emergency room visits.
But Amy Hagstrom Miller, chief executive officer of Whole Woman’s Health, told NM Political Report that the conservative group’s claim is “trying to fabricate emergencies that aren’t there.”
“They couldn’t bring anything forward. They’ve overlooked science. Mifepristone is safer than ibuprofen and Tylenol. Do you think people should have to go to a doctor for a Tylenol? It’s an absurd question but, medically, that’s what we’re talking about,” Hagstrom Miller said.
Hagstrom Miller, who predicted that the Supreme Court would rule in favor of the FDA, said that eliminating the in-person dispensing requirement would have real-world implications for New Mexico because of capacity issues.
She said that being able to provide abortion medication through telehealth frees up space in New Mexico clinics. That’s important since New Mexico clinics see abortion patients coming from states where abortion is banned, such as Texas and Oklahoma.
“It’s very important when thinking of capacity,” she said.
Ellie Rushforth, a reproductive rights attorney with the American Civil Liberties Union of New Mexico said she is “cautiously hopeful” that the majority opinion, based on the justices’ oral argument, will rule in favor of the FDA.
But, the fact that Justices Clarence Thomas and Samuel Alito referred to the Comstock Act during oral argument, could be a kind of signal to the anti-abortion movement to try to bring a suit regarding that law, Cora True-Frost, the Bond, Schoeneck and King Distinguished Professor of Law at Syracuse University told NM Political Report.
True-Frost said Anthony Comstock was an anti-vice advocate who worked to curtail the circulation of medications and information that would lead to vice in the decades following the Civil War. She said one of the first cases the Supreme Court decided challenging the Comstock Act was related to birth control.
The Comstock Act was made moribund by Griswold v. Connecticut, the 1965 Supreme Court ruling that outlawed state bans on contraception between married couples, but Thomas has written in an opinion that it should be reconsidered by the court. True-Frost said “there are countless laws on the books not being actively enforced but that are valid in various regards.”
She said there could be challenges in the future around that provision, despite the fact that the Comstock Act is more than 150 years old.
Related: Professor questions merits of lawsuit seeking to weaken abortion rights law
She said the two conservative justices bringing up the Comstock Act repeatedly, “won’t go unnoticed.”
If the nine justices determine that the case does have standing and rule in favor of the Alliance, then the implications could be devastating, True-Frost said and would go far beyond the question of medication abortion.
She said the effect would be “massive in terms of the impact of the regulatory state.”
“The effect of taking this pill out of circulation, off the menu for women who could choose it, affects this relationship between the administrative branch and the judiciary,” True-Frost said.
She said that taking away the ability of experts within agencies to make rules, “which compose the bulk of our laws,” would be a “major shift.”
“And if they are successful, there would be many battles to follow,” she said.
True-Frost said the implications are larger than just the FDA. She called it a “multi-prong attack against the doctrine called the Chevron deference,” which she defined as a policy of the courts to defer to agency decisions.
“That has been in the crosshairs of very conservative organizations to dismantle that deference to the regulatory state,” True-Frost said.
She also said the attack on the Chevron deference “is not dead,” even if the Supreme Court rules in favor of the FDA on this case.
Prelogar also argued that not only do the plaintiffs lack standing but that the organization that brought the case also lacks merit. Rushforth said the organization claims it experienced harm because it had to spend time and resources thinking about the issue and researching it. If the court agreed with the Alliance on this portion of the case, it would upend the concept that, in federal court, an organization has to show harm to bring a suit, Rushforth said. She said that it could mean an organization could “purchase standing” or in other words, “buy your way into court.”
Hagstrom Miller said that her clinic has not seen any change in individuals requesting abortion medication with the suit pending this spring. She said Whole Woman’s Health, including the New Mexico clinic, is “well over the national average.” The Guttmacher Institute, a reproductive research organization, recently reported that 63 percent of pregnant people terminating a pregnancy chose medication abortion as the method.
Gov. Michelle Lujan Grisham issued a statement regarding the case on Tuesday. She said limiting care “would be a catastrophic development for reproductive health in this country.”
“It would dramatically undermine the authority of the FDA and open the door to more extremist attacks on medications that help people live healthier, more fulfilling lives. In New Mexico, we believe strongly in preserving access to abortion and abortion medication, and we will continue to do so,” Lujan Grisham said in her statement.
The court’s decision will likely come this summer.