A US supreme court hearing that held the potential to reshape abortion access and the US Food and Drug Administration’s authority did not go well for anti-abortion doctors behind the case, legal experts said on Tuesday.
The consensus is a positive sign for abortion-rights advocates, who feared the case would curtail access to medication abortions, which now account for the majority of all abortions nationally.
“It’s very possible that they will just toss the lawsuit out because the anti-abortion doctors didn’t have legal standing to sue,” said Lawrence Gostin, a professor at Georgetown Law School and an expert in global public health law, said about the justices.
“In my view, the lawsuit was absurd on its face and deserves to be thrown out because these anti-abortion doctors had very little injury,” Gostin added.
The case deals with FDA regulation of the drug mifepristone, one-half of a two-drug regimen used to terminate an early pregnancy. A group representing the doctors, called the Alliance for Hippocratic Medicine, has sought to roll back FDA decisions that expanded mifepristone access, such as allowing doctors to prescribe it via telehealth.
The Alliance argued its doctors could be forced to deal with complications of a medication abortion, thus doctors had the legal right, or standing, to bring the case.
But over the course of 90 minutes of oral arguments, even members of the supreme court’s conservative supermajority seemed skeptical of the claim.
Justices Amy Coney Barrett and Brett Kavanaugh asked US solicitor general Elizabeth Prelogar whether the doctors, represented by the powerhouse conservative law firm Alliance Defending Freedom, were already protected by laws that shield healthcare providers from violating their consciences. Fellow conservative Neil Gorsuch indicated that, in asking for a nationwide change, the anti-abortion doctors were asking for too much.
“This case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on a FDA rule,” Gorsuch said.
Eva Temkin, an attorney at the law firm Paul Hastings who wrote a brief to the court on behalf of pharmaceutical executives and companies and a former FDA attorney, said the hearing underscored the importance of the FDA’s work as an independent arbiter of science.
“The court was sort of appropriately skeptical of the plaintiffs’ standing in this case, and also appropriately skeptical of the idea that FDA had abused its authority by reaching the scientific judgment it reached,” said Temkin.
Many legal experts agreed the anti-abortion doctors lacked the standing to sue. But they were less sure that the supreme court – which overturned Roe v Wade less than two years ago – would not side with the doctors anyway.
“What we’ve seen recently is groups like ADF essentially saying: ‘We have a conservative supermajority. Let’s see if any of the old rules still apply. Let’s see if any of the procedural guardrails still exist,’” said Mary Ziegler, a professor at the University of California, Davis who studies the legal history of reproduction. “I think you had a lot of the conservative justices saying: ‘Yes, we’re conservative on abortion, but you still don’t have standing. Sorry!’”
Not every justice appeared so dubious of the anti-abortion doctors’ standing. Clarence Thomas and Samuel Alito, the most conservative justices, seemed more willing to side with the anti-abortion doctors.
“Justice Alito’s vote is not even remotely in question. The plaintiff here could be a Barbie doll and he would find standing,” said Elizabeth Sepper, a professor at the University of Texas at Austin.
Still, she added: “I still think if I were a bookkeeper, I would have odds on the government prevailing on standing.”
Experts were also struck by Thomas’s and Alito’s references to the Comstock Act, a 19th-century anti-obscenity law that, in the wake of Roe’s demise, anti-abortion activists have argued can be used to implement a nationwide abortion ban.
Although the Comstock Act has not been enforced in roughly 80 years, Thomas asked a lawyer for Danco Laboratories, a manufacturer of mifepristone, to explain why Danco was not violating the Comstock Act by selling and advertising mifepristone. (She demurred, saying that such an issue was not before the court.)
“He suggested to the lawyer for Danco that the company is committing criminal acts, currently, on an ongoing basis,” Sepper said. “That’s effectively what that exchange came down to, and that’s sort of stunning.”
Whether the supreme court sides with the FDA and Danco, or with the anti-abortion doctors, Thomas, Alito or both will likely end up writing an opinion that mentions the Comstock Act, multiple experts said.
“It’s getting raised in briefs, it’s getting raised in cases where it’s of dubious relevance,” said Joanna Grossman, a law professor at the Southern Methodist University Dedman School of Law. “It’s in the conversation. Do I think they probably have the votes to make it more than part of the conversation? Probably not. But I’ve been wrong before.”
Even if the FDA prevails in the mifepristone case, it is unlikely to be out of the woods. The supreme court is currently deliberating over another case that attacks the administrative state and that could jettison the Chevron Doctrine, a legal concept that requires judges defer to expert agencies when the law is ambiguous.
“We’re really beginning to see the crumbling of health and safety agencies that have kept Americans healthy and safe for nearly a century – and all of that is beginning to wither away right in front of our eyes,” Gostin said. “So the FDA is not out of the woods, and neither are their counterparts at other health and safety and scientific agencies.”
The justices are also set to hear oral arguments in yet another abortion case next month, which will ask the justices to decide whether a federal law that require hospitals to stabilize patients in medical emergencies pertains to emergency abortions. Regardless of how that case or the mifepristone case ultimately plays out, experts are confident that the supreme court will be asked to weigh in on abortion again and again.
“If standing ends up being the way that this case ends, that doesn’t mean this kind of challenge won’t happen again,” said Nicole Huberfeld, a health law professor at Boston University’s School of Public Health. “The courthouse doors remain open.”
