Opposing protesters outside of the U.S. Supreme Court on Tuesday, March 26, 2024, are kept separated by fencing as U.S. Capitol Police and Supreme Court Police observe. The demonstrators held signs and chanted as the justices heard oral arguments over access to mifepristone, one of two pharmaceuticals used in medication abortion. (Photo by Ashley Murray/States Newsroom)

WASHINGTON — The future of medication abortion access in the United States went in front of the U.S. Supreme Court justices on Tuesday, where several justices appeared somewhat skeptical as anti-abortion organizations argued use of the pharmaceutical should be moved back to what was in place before 2016.

Solicitor General Elizabeth Prelogar, speaking on behalf of the federal government, told the conservative-dominated court that those restrictions would be unnecessary due to the numerous reputable studies that have shown mifepristone to be safe and effective.

Prelogar also argued that conscience protections already in place at the federal level protect doctors and other health care providers who don’t want to participate in elective abortion or in treating complications that can sometimes arise from medication abortion.

“Only an exceptionally small number of women suffer the kinds of serious complications that could trigger any need for emergency treatment,” Prelogar said. “It’s speculative that any of those women would seek care from the two specific doctors who asserted conscience injuries. And even if that happened, federal conscience protections would guard against the injury the doctors face.”

Prelogar said there was no way to trace those two anti-abortion doctors’ concerns — cited in the case argued by Alliance Defending Freedom — about treating patients with complications from medication abortion to the changes the Food and Drug Administration approved in 2016 and 2021, which were at the center of the case before the Supreme Court.

Prelogar also said the anti-abortion legal organization that filed the original lawsuit hadn’t identified a situation where a doctor or health care provider opposed to abortion raised a conscience protection and then had that violated.

Medication abortion includes mifepristone as the first pharmaceutical and misoprostol as the second. The two-drug regimen accounted for about 63% of abortions within the United States in 2023, according to a report from the Guttmacher Institute.

Questions about broad changes in access

Justices Amy Coney Barrett and Neil Gorsuch — appointed to the court by former President Donald Trump — and Ketanji Brown Jackson, appointed by President Joe Biden — were among the members of the court who specifically asked about why conscience protections would or would not be an appropriate remedy to the anti-abortion doctors’ concerns about medication abortion.

“I’m worried that there is a significant mismatch in this case between the claimed injury and the remedy that’s being sought,” Jackson said. “The obvious, common-sense remedy would be to provide them with an exemption that they don’t have to participate in this procedure.”

But, Jackson noted, the anti-abortion doctors were seeking changes in access to mifepristone for everyone in the United States.

“And I guess I’m just trying to understand how they could possibly be entitled to that, given the injury that they have alleged,” Jackson said.

Gorsuch appeared to express some criticism of the anti-abortion case as well, saying, “We have before us a handful of individuals who have asserted a conscience objection.”

“Normally, we would allow equitable relief to address them,” Gorsuch said. “Recently — and I think what Justice Jackson is alluding to — we’ve had, what one might call, a rash of universal injunctions or vacatures.”

“And this case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule, or any other federal government action,” Gorsuch said.

Prelogar agreed there was a “profound mismatch,” though Erin Morrow Hawley argued on behalf of Alliance Defending Freedom and the anti-abortion doctors that conscience protections don’t go far enough.

“These are emergency situations,” Hawley said. “Respondent doctors don’t necessarily know until they scrub into that operating room whether this may or may not be abortion drug harm — it could be a miscarriage, it could be an ectopic pregnancy, or it could be an elective abortion.”

Doctors, Hawley said, “can’t waste precious moments” in those circumstances.

Ruling coming later this year

The Supreme Court’s opinion on the case, Food and Drug Administration v. Alliance for Hippocratic Medicine, will likely arrive sometime early this summer in the middle of a bitter campaign for control of the White House and Congress in which the issue of reproductive rights is being stressed by Democrats.

The ruling will come about two years after the Supreme Court overturned the constitutional right to an abortion that it first recognized in the 1973 Roe v. Wade ruling and reasserted in the 1992 Casey v. Planned Parenthood decision.

Reverting use of mifepristone, one of two pharmaceuticals used in medication abortions, back to what was in place before the FDA began making changes in 2016 would lead to significant changes for doctors and patients:

• Mifepristone would be approved for up to seven weeks gestation, down from the current 10-week ceiling for use.
• Patients would go back to attending three, in-person doctor’s office appointments to complete the medication abortion process.
• The pharmaceutical could no longer be sent to patients through the mail.
• Only doctors would be able to prescribe mifepristone, removing the option for qualified healthcare providers like physician’s assistants and nurse practitioners to prescribe it.

The FDA originally approved mifepristone in 2000, later updating prescribing guidelines in 2016 and again during the COVID-19 pandemic.

Several major medical organizations — including the American College of Obstetricians and Gynecologists, the American Medical Association and the Society for Maternal-Fetal Medicine — wrote in a brief to the Supreme Court ahead of oral arguments that “(f)ocus on the use of mifepristone for induced abortion disregards how similarly essential it is to the safe and effective treatment of miscarriage or early pregnancy loss.”

“Miscarriage is common,” the medical organizations wrote. “Of the roughly 5.5 million pregnancies estimated to occur in the United States each year, between 10% and 26% end in miscarriage. For the million or more patients who experience early pregnancy loss annually, mifepristone is often a critical component of care.”