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US Supreme Court skeptical of restrictions on abortion pill

Mifepristone, sold under the brand name Mifeprex, was approved by the US Food and Drug Administration in 2000 (Anna Moneymaker)
Mifepristone, sold under the brand name Mifeprex, was approved by the US Food and Drug Administration in 2000 (Anna Moneymaker)

The US Supreme Court on Tuesday appeared poised to reject restrictions imposed by a lower court on an abortion pill widely used in the United States to terminate pregnancies.

Dozens of demonstrators gathered outside as the top court heard its first significant abortion case since the justices overturned the constitutional right to the procedure nearly two years ago.

A majority on the conservative-dominated court appeared skeptical during 90 minutes of arguments about the legal standing of the anti-abortion groups and physicians who brought the case against the medication, mifepristone.

Abortion opponents are seeking to restrict nationwide access to the pill, claiming it is unsafe and that anti-abortion doctors are being forced to violate their conscience by intervening on patients who suffer complications after using it.

"These are life-threatening situations in which the choice for a doctor is either to scrub out and try to find someone else, or to treat the woman who's hemorrhaging," said Erin Hawley, a senior counsel at Alliance Defending Freedom arguing for the anti-abortion groups.

Solicitor General Elizabeth Prelogar, representing the administration of President Joe Biden, countered that such a scenario was "remote" and abortion opponents are unable to "identify a specific doctor who faces imminent harm."

"They have said that they fear that there might be some emergency room doctor somewhere, someday, who might be presented with some woman who is suffering an incredibly rare complication, and that the doctor might have to provide treatment," Prelogar said.

A conservative US district court judge in Texas, an appointee of Donald Trump, issued a ruling last year that would have banned mifepristone, which was approved by the Food and Drug Administration (FDA) in 2000.

An appeals court overturned the outright ban because the statute of limitations on challenging the FDA's approval had expired, but restricted access to the drug.

The appeals court reduced the period during which mifepristone can be used from 10 weeks of pregnancy to seven weeks, blocked it from being delivered by mail, and required the pill to be prescribed and administered by a doctor.

- 'FDA's gold standard review' -

Justice Ketanji Brown Jackson, a liberal, said she was worried about a "significant mismatch in this case between the claimed injury and the remedy that's being sought."

"What (the anti-abortion doctors) are asking for here is that in order to prevent them from possibly ever having to do these kinds of procedures, everyone else should be prevented from getting access to this medication," Jackson said.

Justice Neil Gorsuch, a conservative, expressed similar concerns.

"We say over and over again -- provide a remedy sufficient to address the plaintiff's asserted injuries and go no further," Gorsuch said. "We have before us a handful of individuals who have asserted a conscience objection."

Jessica Ellsworth, a lawyer for mifepristone manufacturer Danco Laboratories, said she had "significant concerns" about courts replacing the scientific judgment of experts and the "FDA's gold standard review process."

Only two justices -- conservatives Samuel Alito and Clarence Thomas -- appeared sympathetic to the anti-abortion groups which brought the suit challenging the FDA's approval of mifepristone.

"You think the FDA is infallible?" Alito asked Ellsworth.

Both justices also raised the Comstock Act, an obscure 1873 law that banned the shipment by mail of "lewd" materials or anything that could be used for "producing abortion."

Medication abortion accounted for 63 percent of the abortions in the country last year, up from 53 percent in 2020, according to the Guttmacher Institute.

Some 20 states have banned or restricted abortion since the Supreme Court in June 2022 overturned the landmark Roe v. Wade ruling that enshrined the constitutional right to abortion for half a century.

Polls show a majority of Americans support continued access to safe abortion, even as conservative groups push to limit the procedure or ban it outright.

The Supreme Court is expected to issue a decision in the abortion pill case by the end of June -- four months before the presidential election in which abortion is almost certain to be a major topic.

cl/sst