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

Three women are participating in Tuesday's arguments.

Elizabeth Prelogar, the solicitor general at the Department of Justice, is arguing on behalf of the federal government.

Jessica Ellsworth is representing Danco Labs, the manufacturer of mifepristone.

Erin M. Hawley is counsel speaking for the Alliance for Hippocratic Medicine, a group of anti-abortion medical organizations that brought the challenge against the FDA and mifepristone.

Justice Elena Kagan pressed Solicitor General Elizabeth Prelogar on the "arresting" statement from the government that this case marks the first time any court has restricted access to an FDA-approved drug.

"That is still to our knowledge the only time a court has done that," Prelogar responded.

"We have seen a disturbing trend of courts sometimes also overriding FDA's judgment to try to grant greater access to drugs and that overrides FDA expert judgment about what's necessary to ensure safe use," she continued. "And no matter which direction you come at it from we, on behalf of FDA, think that courts have no business making those judgments."

Solicitor General Elizabeth Prelogar suggested that the anti-abortion plaintiffs were seeking a sweeping ruling to reverse the FDA's approval of the abortion medication mifepristone because of their personal conscience views.

Prelogar was agreeing with Justice Ketanji Brown Jackson, who raised that idea as she called it a "mismatch" between the issues brought by the plaintiffs and what they are asking the court.

"The obvious common sense remedy would be to provide them with an exemption that they do not have to participate in this procedure and you say federal law already gives them that," Jackson said.

Justice Samuel Alito said the plaintiffs argued in court filings that studies have shown after the 2021 change from the FDA that allowed mifepristone to be mailed that there was an increase in emergency room visits.

He asked Solicitor General Elizabeth Prelogar if the FDA's response -- that there were not increases in side effects from the drug -- was proper.

Preolgar said this was a reasoned explanation from the FDA and the agency acknowledged that while some studies have shown the availability of abortion pills by mail led to more ER visits, this did not equate to "more serious adverse effects."

"Many might go because they are experiencing heavy bleeding which mimics a miscarriage and they need to know whether or not they are having a complication," she said.