Supreme Court Seems Set to Preserve Access to Mifepristone in Likely Defeat for Abortion Foes

AMY GOODMAN: The U.S. Supreme Court appears likely to preserve access to the abortion pill mifepristone, which is used for roughly two-thirds of all U.S. abortions. Oral arguments were held Tuesday on the Biden administration’s appeal of lower court rulings which restricted access to the pill, including its availability by mail. The case was brought by a group of anti-choice medical associations which have sought to overturn moves by the FDA to increase accessibility to the drug, which was approved by the FDA over 20 years ago.

This was the first abortion-related Supreme Court hearing since the court overturned Roe v. Wade in 2022. Since then, medications to terminate pregnancies have increased in importance because patients can get them by mail and take them at home, including in states that have severely limited or banned abortions. A decision on the case is expected by July.

For more, we’re joined by Michele Goodwin, professor of constitutional law and global health policy at Georgetown University and founding director of the Center for Biotechnology and Global Health Policy. She’s author of Policing the Womb: Invisible Women and the Criminalization of Motherhood, joining us from Washington, D.C.

Professor Goodwin, welcome back to Democracy Now! First, give us your overall impression of the oral arguments before the Supreme Court and where the justices stood, across the political spectrum, in questioning — in doing their questioning.

MICHELE GOODWIN: First, it’s great to be back with you.

Overall, the justices showed that they were skeptical of the claims brought by the plaintiffs in this case, a group of individuals, who call themselves doctors, who claim that they have been affected negatively by mifepristone being in the marketplace. They claim that it is a drug that was rushed to the marketplace by the Food and Drug Administration and that it is unsafe. And because, as they say, it is unsafe, then they will be put in a position of having to treat individuals who have been harmed by this drug who appear in hospitals and emergency rooms.

But it’s important to unpack their claims. First of all, they rely on three studies, two of which have been retracted and one of which was just a collection of anonymous blog posts. The second thing is that when the Food and Drug Administration brought this drug to the marketplace for approval, it had been under review for 54 months — three times the length of other drugs that were approved that very same year, over 20 years ago, as you noted. The third thing is that over decades of research, both in the United States and abroad, it is clear that mifepristone is incredibly safe, safer even than Tylenol. That is to say that the negative indications that would cause a person to need medical care is less than what people would experience by taking Tylenol. But these are the kinds of claims that have been out in the social atmosphere.

The judges — the justices were incredibly skeptical even with regard to just the question of standing. Amongst these individuals who claim to be doctors, one is a person who has a master’s degree in theology, no MD, likely a person that would not be admitted into any hospital to be able to provide any care to anybody. Another is a dentist, again a person who would likely never be in a hospital allowed to treat anyone. Amongst that group of seven then come down to two who made claims that they would be most affected, called into emergency rooms to help this abundance of people who would be appearing because they would have complications due to using mifepristone, but they had no record. And the justices really pushed them. Justice Ketanji Brown Jackson really pushed: “Give us facts. Tell us that actually this has ever happened, where one of your plaintiffs has been put in the position of having to help someone because they had complications due to mifepristone.” And they couldn’t come up with that.

On the other hand, the lawyer for these individuals kept claiming that it would be a potentiality in the future, that there would be a probability in the future, because more people are using mifepristone. Now, to just be clear, it’s not the case that people don’t come to a hospital after they use mifepristone. Some people might. But the question is: When they come in, are they in a dire medical situation where they actually need care? And this is an important distinction, because the Food and Drug Administration did acknowledge that there are people who use mifepristone and who go to a hospital, but this is natural because they have been bleeding. It’s not been because they have been in medical crisis. People go to ER when they have colds and when they have the flu, as well. It doesn’t mean that they are dying or that there is the kind of medical crisis that would qualify this drug to be one that should not be on the marketplace. That was the general overview, skepticism — skepticism from Justices Gorsuch, Kavanaugh, Amy Coney Barrett, Sotomayor, Kagan and, as well, Justice Ketanji Brown Jackson. So, not a good day for those who are pushing this anti-abortion agenda.

But let me say one additional thing. Comstock was brought up by Justice Thomas. And we might want to talk a bit about that. It’s a centuries-old law that has not been repealed by Congress but has not been used by Congress in a hundred years. And it’s the next line of strategy that might be used by those who have an anti-abortion stance. What the Comstock Act does is it prohibits contraception and abortifacients from being mailed by the U.S. Postal Service or by carriers.

JUAN GONZÁLEZ: And, Michele Goodwin, what parts of the FDA’s authority to regulate mifepristone are being challenged by these plaintiffs?

MICHELE GOODWIN: Well, this is — this was the mystery even for the members of the United States Supreme Court. Justice Ketanji Brown Jackson put it quite squarely to both the government lawyer as well as the — Prelogar, General Prelogar, as well as the lawyer for the group. It’s strange. As Justice Ketanji Brown Jackson said, “Well, who’s to decide in these cases?” Do we leave these matters to the Food and Drug Administration, where there are scientists who are trained to do these kinds of reviews, to hold to account the pharmaceutical industry, people who have the capacity, the knowledge, the experience to review the data that comes in from both the pharmaceutical industry and, as well, the data collected by the government? Who is best qualified? Those individuals? Or would it be judges and justices? And she made note of the fact that with the evidence presented by the plaintiffs in this case, which included anonymous blog posts, and that to serve as credible evidence before Judge Kacsmaryk in Amarillo, Texas, basically showing, you know, the emperor has no clothes, that judges are not in the best position to review the scientific data and evidence. And for the alliance who brought this suit in the first place, they really had no response to that.

AMY GOODMAN: Justice Ketanji Brown Jackson asked the lawyer representing the mifepristone manufacturer, Danco, to lay out her concerns about judges parsing medical and scientific studies about pharmaceuticals. This was attorney Jessica Ellsworth’s response.

JESSICA ELLSWORTH: You have a district court that, among other things, relied on one study that was an analysis of anonymous blog posts. You have another set of studies that he relied on that were not in the administrative record and would never be, because they post-date the FDA decisions here. They have since been retracted for lack of scientific rigor and for misleading presentations of data. Those sorts of errors can infect judicial analyses precisely because judges are not — they are not experts in statistics. They are not experts in the methodology used for scientific studies, for clinical trials. That is why FDA has many hundreds of pages of analysis in the record of what the scientific data showed. And courts are just not in a position to parse through and second-guess that.

AMY GOODMAN: And this is Justice Thomas mentioning the Comstock Act when questioning Erin Hawley, the lawyer representing the abortion pill’s challengers.

JUSTICE CLARENCE THOMAS: Ms. Hawley, I am sure you heard the answers of the solicitor general and the counsel for Danco with respect to the Comstock Act. I’d like you to comment on their answers.

ERIN HAWLEY: Sure, Justice Thomas. We don’t think that there’s any case of this court that empowers FDA to ignore other federal law. With respect to the Comstock Act is relevant here, the Comstock Act says that drugs should not be mailed through the — either through the mail or through common carriers. So we think that the plain text of that, Your Honor, is pretty clear.

AMY GOODMAN: Erin Hawley now becomes one of the only women ever to argue a prominent abortion case at the Supreme Court for the anti-abortion side. This is her first Supreme Court argument. Her husband is Senator Josh Hawley, the Republican of Missouri, who was in the courtroom for the oral arguments. I mean, the significance of what she’s saying, and if you can talk more about who the doctors were who brought the case against mifepristone, and the whole discussion that took place in the court around the issue of dentists?

MICHELE GOODWIN: Well, you know, let’s back up to Danco, the manufacturer, who has a stake in this, as do other pharmaceutical manufacturers. There is a concern that if this case were allowed to go forward, including with the very attenuated individuals who claim that there is somehow standing — that’s very attenuated in this case. In order to have standing — and this was a prominent issue discussed yesterday — under Article III of the Constitution, one must have some skin in the game. One must have been affected by the law, the regulation, what’s in place. One must show that they have been harmed by it and that somehow the court is able to provide the kind of relief that they need.

The first thing is, it’s very, very hard to show that these are individuals who have been affected negatively by mifepristone being in the marketplace, because, as was raised by the justices, these individuals can opt out. The federal government recognizes individuals’ conscience. And that is that doctors — and not only doctors, even people who are pharmacists, nurses — can claim that they have a religious objection to performing certain types of medical care. A pharmacist can have a religious objection to dispensing certain types of care. And what the justices walked them through, the lawyers, was that those individuals usually go through a process. They let their pharmacy know, they let their hospital know, such that they’re not even called upon when there are cases that present of which they would not want to provide care.

In this case, Erin Hawley said that that was not enough. It was just simply not enough that these individuals would be able to exempt themselves out. And, in fact, she seemed to suggest that there would be somehow complications at hospitals, where somehow even though they have exempted themselves out, that somehow they would still be called upon in order to help in cases of managing a miscarriage or an abortion. That is really important to note, because it gets back to this question of standing.

Now, as to the other issues with regard to these doctors, the so-called doctors in this case, well, that, you know, relates. Of the seven, it really boiled down to only two who are obstetricians, gynecologists, who might be in a hospital performing some care, obstetric care or gynecological care. But as Justice Ketanji Brown Jackson noted, that the kind of relief that they seek in this case is totally disproportionate to who they are and in relief for them, because the relief already exists. And that is the fact that they can just be exempted from providing any kind of care in an emergency room that might relate to somebody who needs to manage a miscarriage.

It was interesting that Justice Amy Coney Barrett also made another clarification, and that is to say that these individuals would not know if they were called in — necessarily know that when they have been called in for emergency care to evacuate a uterus, that it was because someone necessarily took mifepristone. And then there was discussion about that, including Amy Coney Barrett asking questions with regard to ultrasounds and matters on that note.

JUAN GONZÁLEZ: And, Michele Goodwin, could you talk about the group behind this alliance, this so-called alliance of doctors, the Alliance Defending Freedom?

MICHELE GOODWIN: Well, yes. This is a group — well, to level-set a bit, there has been, for some time now, an infusion, significant infusion, of finances, of money, that has gone into defeating Roe v. Wade, Planned Parenthood v. Casey and a legacy of cases that affirmed Roe v. Wade. And that’s important for listeners to know, because in the Dobbs decision, when Justice Alito, in writing that opinion, he seemed to suggest that out of nowhere there was Roe, and then there was Planned Parenthood v. Casey, and otherwise there’s no legacy of reproductive rights before the court. That’s just not accurate. Forty years before Roe — 30 years before Roe, Skinner v. Oklahoma, the Supreme Court had said that determining your own reproductive future is a human right, it’s a civil right, it’s a civil liberty. That was a case that involved a man. And then, after Roe, there were a legion of cases that continued to affirm Roe.

That said, what we have now is an alliance, an alliance that has been deeply funded, that’s been attempting to chip away at abortion rights both federally and also state by state, involved in the Dobbs case, involved in the Texas litigation, the legislation that overturned abortion rights in that state. They are very active. And they’re seeking to also then interfere with the federal government seeking to use EMTALA as a means of helping individuals who are in emergency situations who also need to terminate pregnancies. So, it’s worth noting that this particular organization is not just involved with this particular case, but it is part of a movement afoot, a well-funded movement, that is seeking to not only undermine abortion rights, but also seeking to undermine other reproductive freedoms that people truly care about, including access to contraception.

AMY GOODMAN: And we just have 15 seconds, Professor Goodwin, but were you surprised by the tone of the questions? And do you think they’re headed toward allowing mifepristone?

MICHELE GOODWIN: I believe that they are towards allowing mifepristone to remain in the marketplace, because the risk is that any other group that would like to have a drug or a vaccine removed from the marketplace could forum shop for the right kind of judge that might lean into what is information that is inaccurate, and grant standing to individuals and potentially risk important vaccines from being removed from the U.S. marketplace, which would be a risk to us all, to children, to adults, and also globally.

AMY GOODMAN: Michele Goodwin, professor of constitutional law and global health policy at Georgetown University, founding director of the Center for Biotechnology and Global Health Policy, host of the Ms. magazine podcast On the Issues with Michele Goodwin and author of Policing the Womb: Invisible Women and the Criminalization of Motherhood. In 2021, her guest essay for The New York Times was headlined “I Was Raped by My Father. An Abortion Saved My Life.”

Up next, a state legislator in Arizona speaks from the Senate floor, explaining why she’s about to have an abortion. Just back from that abortion, she’ll talk about why it was so important to take her personal agonizing decision public. Stay with us.