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WASHINGTON — Supreme Court justices on Tuesday seemed to question physicians’ right to sue the Food and Drug Administration to reinstate restrictions around a commonly used abortion pill — a line of questioning that suggests they are unlikely to restrict access to the pill.

Justices Elena Kagan and Ketanji Brown Jackson, in particular, repeatedly asked the plaintiffs, a Christian-based medical organization, for examples of when objecting physicians were forced to assist with abortion or its complications as a direct result of the FDA relaxing restrictions around mifepristone prescribing. Conservative Justice Samuel Alito, while appearing more sympathetic to the plaintiffs than others, also asked the lawyer representing the agency whether the scenario — a morally opposed doctor forced to treat a patient who had taken mifepristone — was “too speculative.”

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Justice Neil Gorsuch, a Trump appointee, interjected at one point to vent about the “rash” of injunctions lower courts have imposed over the past several years, seemingly lobbing a complaint at Texas Judge Matthew Kacsmaryk, who first heard the case and ordered mifepristone off the market. An appeals court later reversed that ruling but upheld injunctions against two FDA decisions that extended mifepristone use to 10 weeks of pregnancy from seven, and removed the in-person dispensing requirement, which opened the channels for mail orders of the drug.

While some justices asked about the impact a court decision could have on FDA’s authority — and Alito questioned whether that authority should go unchecked — most appeared wary of the plaintiff’s claims that increased mifepristone access harmed them.
“I don’t want to hypothesize. Can you point me to any place [where doctors wanted to object to treating patients who took mifepristone, but could not]?” Jackson asked Erin Hawley, lawyer for the Alliance for Hippocratic Medicine.

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Hawley responded that it is difficult to name specific instances because they happen in emergency situations.

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“You need a person. You need a person to be able to come in and meet the court’s standing requirements,” Kagan said. She later pointed out that the doctors Hawley cited live in Texas and Indiana, where abortion is largely banned.

There is already an “infinitesimally small” chance that those doctors would be put in a situation where no one else at their hospital or clinic could treat a patient who took mifepristone, Kagan said, “then add to it that this is illegal in your state.”

Mifepristone, which the FDA approved in 2000, is used in nearly two-thirds of all abortions in the United States. But the Alliance for Hippocratic Medicine is arguing that the agency acted hastily and politically when approving the medicine and later reducing prescribing limits.

While the highly anticipated oral arguments are one of the first windows into the nine justices’ thinking, the court is not expected to hand down a decision until this summer.

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Legal scholars said the line of questioning from judges suggested there was a strong chance the case could be dismissed. 

“Even the conservative justices seemed skeptical of the standing claims and the merits of the case were not really the focus,” said Greer Donley, professor of law at the University of Pittsburgh School of Law, who led a brief that food and drug law scholars submitted to the court about the case. “If enough justices thought there was standing then there would be more focus on the merits,” she added.

Elizabeth Sepper, professor at the University of Texas Law School agreed, but noted that legal experts had been wrong in the past particularly around abortion cases, such as Texas’s 2021 abortion ban, which many expected to be challenged under judicial review.  

Since the FDA dropped the in-person dispensing requirement in 2021, more doctors and clinics are providing mifepristone, particularly through telehealth appointments, according to reproductive rights group the Guttmacher Institute. Major pharmacy chains CVS and Walgreens this month announced they will soon begin dispensing the drug.

Outside the Supreme Court on Tuesday, hundreds of abortion rights protestors gathered with posters touting mifepristone’s safety and stereos blasting Dua Lipa and Taylor Swift. Amassed to the right of the court’s marble stairs were anti-abortion advocates including doctors with the Alliance Defending Freedom, which backs the plaintiffs.

Twelve protestors with the Women’s March, including its executive director Rachel O’Leary Carmona and most of their leadership, were arrested but released shortly after.

Justice Amy Coney Barrett, a Trump appointee, appeared interested in whether telehealth prescribing of mifepristone actually elevated patients’ risks, after Justice Department lawyer Elizabeth Prelogar said that in-person visits have never required ultrasounds or fetal heartbeat monitoring — so just like telehealth appointments, they usually consist of screening questions.

“When the FDA took away the in-person visit, it took away the opportunity to do that,” Hawley replied.

Justices also seemed to question whether broad mifepristone limits are a fair response to conscience objections from doctors whose hospitals and clinics can make sure they are not involved in abortion cases.

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The alleged injury — that some objecting doctor somewhere may be asked to aid in complications from a medication abortion — does not match the “remedy” of a nationwide ban, said Jackson. “The obvious, common-sense remedy is to provide [consciously-objecting doctors] with an exemption,” that, she noted, government lawyers said hospitals already provide — and is not the responsibility of the FDA.

But the plaintiffs seemed to find some support in Alito, who asked defending lawyers if they believed the agency is infallible. He also asked Prelogar whether anyone could challenge the lawfulness of the FDA’s drug approval decisions in court.

“It is hard to imagine someone would have standing,” Prelogar said. If the FDA makes a mistake, or approves a drug more dangerous than beneficial, the agency could be challenged, she said — but the plaintiffs did not prove this, she argued.

The plaintiffs also did not “come within 100 miles” of proving that the FDA’s decision harmed them personally and could harm them again, Prelogar said. “The doctors don’t prescribe mifepristone, don’t take mifepristone, [and] are not required to treat patients who take mifepristone.”

Two justices, Thomas and Alito, asked questions suggesting mail-order distribution of pills could be penalized under the Comstock Act, a law from the 1800s that bans mailing of “obscene” materials such as items used for abortion. The questions were “striking”, said Sepper, because the Comstock Act has not been discussed or widely considered relevant for decades.

“It’s been basically defunct since the 1930s,” she said, but seemed to come out of “its grave” at oral arguments today. Although she said it seemed unlikely Comstock would be a deciding factor in this case, Sepper said she wouldn’t be surprised if there was a separate dissenting opinion that referenced the law, and Comstock could well be relevant for future legal issues. “Both Justices sent a signal to any future Republican administration that they have the green light to bring criminal charges against distributors on the grounds of the Comstock Act,” she said.

Jessica Ellsworth, defending lawyer for Danco Laboratories — maker of the branded mifepristone, Mifeprex — told the court that Comstock “has not been enforced for nearly 100 years,” but even if it was, mail-order of approved medicines is not the FDA’s jurisdiction.

“I think this court should think hard about the mischief it would invite if it allowed agencies to start taking action based on statutory responsibilities that Congress has assigned to other agencies,” she said.

Olivia Goldhill contributed reporting.

This story is part of ongoing coverage of reproductive health care supported by a grant from the Commonwealth Fund.