In abortion pill hearing, SCOTUS sounds skeptical of challenge to mifepristone access

Being cited in the arguments is the Comstock Act, a 151-year-old law under which it's illegal to use carriers such as the United States Postal Service to mail "obscene" materials such as drugs that induce abortions.

The Alliance for Hippocratic Medicine has said the FDA's decision to allow patients to receive mifepristone by mail instead of in person from certified health providers specifically violates the Comstock Act.

Solicitor General Elizabeth Prelogar, pressed by Justice Samuel Alito on why the FDA didn't consider the application of the Comstock provisions, said she did not think it fell under the FDA's "lane."

"And we don't think it means what respondents suggested," Prelogar said of the law.

Read more about the Comstock Act here.

Amid questions from the Supreme Court about who has standing to sue, Solicitor General Elizabeth Prelogar said the federal government believes individual doctors still have broad "conscience protections" if they oppose abortion and decline to provide such access in specific instances.

Prelogar reaffirmed that later in the hearing when some justices returned to the topic but noted that the government believes there are exceptions under the law.

Preolgar previously argued that the government does not believe states have standing in this case to sue.

Solicitor General Elizabeth Prelogar is arguing the supposed harm cited by the anti-abortion alliance is "unduly speculative" and hypothetical.

"Their theories rest on a long chain of remote contingencies," she said. "Only an exceptionally small number of women suffer the kind of serious complications that could trigger any need for emergency treatment. It's speculative that any of those woman would seek care from the two specific doctors who asserted conscience injuries."

Prelogar also asserted that if there were any safety consequences to a drug, the FDA could take action itself to fix it.

Justice Clarence Thomas asked Solicitor General Elizabeth Prelogar if there is anyone who would have have a legal right to sue in this case -- which quickly emerged as the first major topic of the court's questioning of the federal government. The FDA has claimed the current plaintiffs do not have standing, with Prelogar suggesting at the hearing that their relationship to people who use mifepristone is too speculative and remote.

Prelogar said there may be an instance where a "competing drug manufacturer might sue and claim that FDA approval of a drug creates a competitive harm or injury or injury in that sense."

Chief Justice John Roberts asked if there is a number of adverse events or a number of patients who go to the emergency room in which the arguments would change. Facing such questions, Prelogar responded by reiterating her view that these possibilities appeared to be too theoretical and detached from specific decision-making and the history of patients who have used mifepristone.