Recap and transcript from Supreme Court hearing on Mifepristone
Justices asked about legal standing, the Comstock Act, and whether there was any precedent for injunction
The Supreme Court released the transcript of the case that will decide the fate of mifepristone, which is the first pill in the abortion medication regimen.
The case was FDA v. Alliance for Hippocratic Medicine, which pits the nation’s governing body on medication approval against a group of antiabortion doctors who want to limit access to the pill.
Solicitor General Elizabeth Prelogar argued on behalf of the Food and Drug Administration and for the continued availability of mifepristone. In her opening argument, she said the doctors who had sued lacked legal standing and emphasized that nothing had forced them to prescribe mifepristone if it was against their conscience.
“Their theories rest on a long chain of remote contingencies,” Prelogar said.
Prelogar said that millions of women would be forced to have surgical abortions if medication was no longer an option. She also said that it would disrupt the approval process for drugs.
Justice Samuel Alito asked if states could have legal standing to challenge FDA approval, to which Prelogar said no. Alito also raised the hypothetical situation of a doctor in an emergency room who had to perform a life-saving abortion against his or her conscience. Prelogar responded by saying it was improbable and without precedent.
“We think that that situation has never come to pass,” Prelogar said. “Respondents haven't identified any incident in more than 20 years that mifepristone has been available on the market that resembles that kind of hypothetical situation.”
Most of the questions directed toward Prelogar by conservative justices focused on conscience objections by doctors.
At one point in the hearing, Prelogar had to address whether the Comstock Act–an antiquated law still on the books from Margaret Sanger’s time that prevents mailing birth control–could be used to prohibit mifepristone. She said the FDA didn’t fall under its purview.
Justice Elena Kagan also pointed out in her questioning that this was the only time a court had undermined an FDA decision.
Jessica Ellsworth presented the argument for the petitioners, Danco Laboratories, which produces Mifeprex. She said that ruling in favor of the doctors would upend all drug approval. Justice Clarence Thomas asked whether they would be subject to the Comstock Act. Ellsworth responded by disagreeing with the interpretation of the statute.
“This statute has not been enforced for nearly a hundred years, and I --I don't believe that this case presents an opportunity for this Court to opine on the reach of the statute,” Ellsworth said.
Erin Hawley argued on behalf of the doctors. She again emphasized conscientious objections. Most justices, including Neil Gorsuch, were skeptical of her argument.
“This case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on --on --on an FDA rule or any other federal government action,” Gorsuch said.
Gorsuch cited that zero universal injunctions were issued during President Franklin Delano Roosevelt’s term in office.
“Over the last four years or so, the number is something like 60 and --maybe more than that, and they're --they're a relatively new thing,” Gorsuch said. “And you're asking us to extend and --and pursue this relatively new remedial course which this Court has never adopted itself. Lower courts have kind of run with this.”
Other justices questioned the respondents’ legal standing.
I've included the full transcript below.