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

Solicitor General Elizabeth Prelogar gave a brief rebuttal on behalf of the federal government, summarizing their view that respondents do not have standing and that their sought remedy of nationwide relief is not warranted.

"They have said they fear there will be emergency room doctors somewhere, someday who might be presented with some woman suffering an incredibly rare complication and the doctor may have to provide treatment, notwithstanding the conscience protections," she said.

"We don't think that harm has materialized -- but what the [lower] court did to guard against that very remote risk was issue sweeping nationwide relief that restricts access to mifepristone for every single woman in this country and that causes profound harm," she added. "It harms the agency, which had the courts come in and displace the agency's scientific judgments. It harms the pharmaceutical agency that is sounding alarm bells that this would destabilize the system for approving and regulating drugs. And it harms women who need access to medical abortions under conditions the FDA determined were safe and effective."

Erin Hawley, the attorney for Alliance Defending Freedom representing the plaintiffs, said they are "harmed" without an injunction of mifepristone because it may require them to treat people experiencing abortion complications and "take an unborn life."

Justice Ketanji Brown Jackson asked Hawley asked how often would it be that the plaintiffs have to complete the procedure "in the way that you are describing?"

Hawley said plaintiffs have treated people experiencing abortion complications "dozens of times" and even said treatment may require "scraping out a uterus". However, she did not provide specific numbers.

Justice Elena Kagan, continuing the court's interest in the plaintiff's standing to bring this case, pressed attorney Erin Hawley on her "conscience harm" argument.

"You need a person. You need a person to be able to come in and meet the court's regular standing requirements," Kagan. "So, who's your person?"

Hawley pointed to one doctor, Dr. Christina Francis, whose partner had to perform a dilation and curettage (or a D&C) due to a life-threatening emergency for a woman who had taken abortion medication. Kagan asked if the doctor stated her objection at that time, which Hawley said they did not.

"The way people with conscience objections do this is they make those objections known," Kagan said. "That may be harder, that may be easier in a particular context but most hospitals have mechanisms in place, routines in place to ensure the doctors who are allowed to do this in advance and are allowed to it at the moment."

Justice Ketanji Brown Jackson asked Erin Hawley, the attorney for Alliance Defending Freedom -- the group representing the plaintiffs -- if a nationwide reversal of the FDA's approval of mifepristone is needed and if the court can simply rule that doctors do not need to prescribe the pill if they have conscience objections.

"Do we have to entertain your argument that no one in the world can have this drug in order to protect your client?" the justice asked.

Hawley argued that given the "emergency nature," it is "impracticable" to not have a broader ban or block on access to the pill.

Justice Neil Gorsuch echoed Jackson's question and asked if it is enough for the court to rule on behalf of the plaintiffs not being required to prescribe the pill and why the court has to consider a universal injunction.