U.S. Supreme Court hears case to restrict access to medication abortion

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 […]

U.S. Supreme Court hears case to restrict access to medication abortion

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.

We're ad free

That means that we rely on support from readers like you. Help us keep reporting on the most important New Mexico Stories by donating today.

Related

Effort to challenge six laws enacted last year comes to an end

Effort to challenge six laws enacted last year comes to an end

Earlier this month, the New Mexico Supreme Court denied and dismissed the effort to challenge six laws enacted in 2023. The New Mexico Supreme…
Governor to call special session for public safety legislation this summer

Governor to call special session for public safety legislation this summer

Gov. Michelle Lujan Grisham announced that she will call the Legislature into a special session this summer to address public safety legislation that did…
Emily’s List endorses seven candidates for Legislature

Emily’s List endorses seven candidates for Legislature

Emily’s List, a nonprofit that supports women candidates and reproductive rights, endorsed seven incumbents facing general election opponents in New Mexico legislative elections. All…
Two PFAS chemicals designated hazardous substances under Superfund law

Two PFAS chemicals designated hazardous substances under Superfund law

The U.S. Environmental Protection Agency released a final rule Friday to designate two types of PFAS chemicals as hazardous substances. Those two chemicals are perfluorooctanoic…
BLM finalizes controversial public lands rule

BLM finalizes controversial public lands rule

The U.S. Bureau of Land Management finalized its controversial public lands rule on Thursday. This rule is controversial because it allows for conservation leasing…
Haaland signs order protecting sacred lands near Placitas

Haaland signs order protecting sacred lands near Placitas

Interior Secretary Deb Haaland signed an order on Thursday to withdraw more than 4,200 acres of land in Sandoval County near Placitas from mineral…
Amid new graduation requirements, what do high schoolers want to learn?

Amid new graduation requirements, what do high schoolers want to learn?

By Margaret O’Hara, The Santa Fe New Mexican The main things that bring Brayan Chavez to school every day: Seeing, talking to and engaging with…
Special ed teachers hope lawmakers OK pay raises, admin changes

Special ed teachers hope lawmakers OK pay raises, admin changes

By Margaret O’Hara, The Santa Fe New Mexican Brittany Behenna Griffith has a laundry list of adjectives to describe the ideal special education teacher:…
Lawmakers must find consensus on competing education spending plans

Lawmakers must find consensus on competing education spending plans

By Margaret O’Hara, The Santa Fe New Mexican A challenging task awaits New Mexico lawmakers in the next 30 days: Reconciling three very different…
Health workers fear it’s profits before protection as CDC revisits airborne transmission

Health workers fear it’s profits before protection as CDC revisits airborne transmission

Amy Maxmen, KFF Health News Four years after hospitals in New York City overflowed with covid-19 patients, emergency physician Sonya Stokes remains shaken by…
Lujan Grisham, Biden admin announce $10 million in federal funds for tribes, pueblos

Lujan Grisham, Biden admin announce $10 million in federal funds for tribes, pueblos

Gov. Michelle Lujan Grisham announced Friday $10 million in funding from the federal American Rescue Plan Act was awarded to six tribal nations and…
Proposal to curb executive powers moves to House Judiciary

Proposal to curb executive powers moves to House Judiciary

The House Government, Elections and Indian Affairs Committee discussed a potential constitutional amendment that seeks to limit the governor’s executive powers. The committee approved…
Abortion fund provider rebrands and holds open house

Abortion fund provider rebrands and holds open house

An abortion fund provider unveiled a rebrand and offered an open house in Las Cruces to celebrate the organization’s new name, mission and values. …
Stansbury introduces judicial ethics bill on U.S. Supreme Court steps

Stansbury introduces judicial ethics bill on U.S. Supreme Court steps

U.S. Rep. Melanie Stansbury announced a bill on Thursday that would, if enacted, establish judicial ethics to the U.S. Supreme Court. The Judicial Ethics…
Politics and abortion, how much will it matter?

Politics and abortion, how much will it matter?

At the national level, abortion is still a high-stakes issue with both major presidential candidates talking about it in their campaigns, but it may…
Abortion fund provider rebrands and holds open house

Abortion fund provider rebrands and holds open house

An abortion fund provider unveiled a rebrand and offered an open house in Las Cruces to celebrate the organization’s new name, mission and values. …
Politics and abortion, how much will it matter?

Politics and abortion, how much will it matter?

At the national level, abortion is still a high-stakes issue with both major presidential candidates talking about it in their campaigns, but it may…
How the AZ Supreme Court decision on abortion impacts New Mexico

How the AZ Supreme Court decision on abortion impacts New Mexico

The Arizona Supreme Court ruled on Tuesday that an 1864 abortion ban is enforceable, throwing another state bordering New Mexico into the situation of…
Effort to challenge six laws enacted last year comes to an end

Effort to challenge six laws enacted last year comes to an end

Earlier this month, the New Mexico Supreme Court denied and dismissed the effort to challenge six laws enacted in 2023. The New Mexico Supreme…
Vasquez calls out Republicans for ‘inaction’ on border policy

Vasquez calls out Republicans for ‘inaction’ on border policy

U.S. Rep. Gabriel “Gabe” Vasquez, a Democrat who represents the state’s 2nd Congressional District along the U.S.-Mexico border, cosponsored a resolution on Monday calling…
Politics and abortion, how much will it matter?

Politics and abortion, how much will it matter?

At the national level, abortion is still a high-stakes issue with both major presidential candidates talking about it in their campaigns, but it may…
Two PFAS chemicals designated hazardous substances under Superfund law

Two PFAS chemicals designated hazardous substances under Superfund law

The U.S. Environmental Protection Agency released a final rule Friday to designate two types of PFAS chemicals as hazardous substances. Those two chemicals are perfluorooctanoic…
New Mexico Voices for Children has new leadership

New Mexico Voices for Children has new leadership

New Mexico Voices for Children, an organization that focuses on tax policy and how it impacts children in poverty, has new leadership. Gabrielle Uballez…
Abortion fund provider rebrands and holds open house

Abortion fund provider rebrands and holds open house

An abortion fund provider unveiled a rebrand and offered an open house in Las Cruces to celebrate the organization’s new name, mission and values. …

GET INVOLVED

© 2023 New Mexico Political Report