In abortion pill hearing, Supreme Court sounds skeptical of challenge to mifepristone access
It's the first major abortion rights case since Roe was overruled.
A high-stakes hearing played out before the U.S. Supreme Court on Tuesday in a case that could reshape abortion access nationwide.
The justices considered a challenge to the Food and Drug Administration’s regulation of mifepristone, the first pill taken in a two-drug regimen for a medication abortion, which is the most common method of abortion in the country.
It is the first major reproductive rights case before the high court since Roe v. Wade was overturned in 2022. A decision is expected by the end of June.
Key moments:
Justices wonder why nationwide injunction of mifepristone is needed
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.
What Americans think of the abortion pill
Two-thirds of Americans (66%) said mifepristone should remain on the market in an ABC News/Washington Post poll conducted last year.
Plus, 72% of Americans said at the time that access to the drug should remain the same.
Overall, 78% of Americans said the decision whether to have an abortion should be left to a woman and her doctor rather than regulated by law. That view was shared by 58% of Republicans.
The poll (conducted 10 months after the fall of Roe) also found half of Americans thought the Supreme Court justices base their rulings mainly on their personal political opinions, not on the law. Before the abortion ruling, the public was divided 46%-45% on whether the justices' rulings were based mainly on the law or on their own political preferences.
Anti-abortion group begins presentation to court
Attorney Erin Hawley, representing the anti-abortion Alliance for Hippocratic Medicine that is challenging mifepristone, has begun her presentation to the justices.
Hawley is echoing the alliance's attacks on the drug's use and regulation by the FDA, contending that it creates harm to women and burdens doctors who must then care for such patients who use mifepristone.
Hawley also invoked an "intolerable" choice that is created by the widespread use of mifepristone -- if an anti-abortion doctor must consider treating abortion patients in an emergency situation or not.
-ABC News' Adam Carlson
Attorney notes some studies in initial ruling were retracted
Jessica Ellsworth, the attorney for Danco Labs, was asked by Justice Ketanji Brown Jackson if she was concerned about the prospect of judges parsing medical and scientific studies without specialized knowledge.
"I think we have significant concerns about that," Ellsworth said, noting the pharmaceutical industry submitted briefs to the court expressing that worry.
She went on to state that U.S. District Judge Matthew Kacsmaryk, who initially ruled to suspend mifepristone's approval, relied on studies that "were not in the administrative record" and never would have been.
"They have since been retracted for lack of scientific rigor and misleading presentations of data," she said.
Sage Publishing said it issued the retractions from the journal Health Services Research and Managerial Epidemiology because of methodology issues and conflicts of interest, ABC News previously reported.
What anti-abortion groups claim about mifepristone
The lead plaintiff, the Alliance for Hippocratic Medicine, had initially challenged the FDA’s approval of mifepristone.
But the matter before the high court now is more narrow -- whether the FDA's subsequent regulatory decisions about the drug, in 2016 and 2021, were sound.
In court filings, the Alliance Defending Freedom, a Christian conservative legal advocacy representing the plaintiffs, has claimed mifepristone is not safe and that the FDA didn't study it closely enough before it was approved.
The group also argued that the FDA’s decisions in 2016, lowering the recommended dosage and extending the use from seven weeks through 10 weeks of pregnancy, and in 2021, which permanently lifted the restriction on requiring abortion pills to be dispensed in-person, were unsound.
In January 2022, the FDA went further by allowing retail pharmacies to provide the drug too, either by mail or in person, so long as they meet certain requirements, which the plaintiffs claim violate federal laws that prohibit the distribution of chemical abortion drugs by mail.
The FDA rejects the claims, arguing that mifepristone is safe when used as indicated and directed, and that the pill went through a thorough and comprehensive review before being approved.