ST. LOUIS, Missouri — The Supreme Court could soon decide the fate of the most commonly used abortion pill in America.
The high-profile oral arguments marked the most significant abortion-related case to reach the Supreme Court since it struck down Roe v Wade. Back then, women couldn't get Mifepristone in the mail without an in-person visit to their doctor.
When abortion bans started to sweep the nation, President Joe Biden directed the FDA to start allowing women to order the pill in the mail under relaxed regulations. The Alliance for Hippocratic Medicine, a group of religious doctors, sued the FDA when it expanded mail-order abortion pills.
Erin Hawley, the lead lawyer representing the outfit, argued the FDA understated or underestimated the safety risks inherent in the abortion pill when it expanded its access.
Women have had regular access to Mifepristone since 2000. Nearly two-thirds of all abortions in the United States last year involved Mifepristone, according to a research group that supports abortion rights. The FDA describes the medication as safe and effective, and it requires reporting of any negative side effects.
Data from the FDA says on rare occasions, a medically induced abortion may end where a surgeon needs to remove dead tissue that would pose an immediate health risk if it remained.
According to court documents, Dr. Christina Francis, a member of the American Association of Pro-Life Obstetricians and Gynecologists based in Fort Wayne, Indiana, objected to performing a 'D&C,' or a dilation and curettage procedure on a patient who came in with "retained pregnancy tissue along with endometritis, an infection of the uterine lining."
Justice Amy Coney Barrett questioned whether Dr. Francis' treatment of the patient after the fact really violated her preference not to participate in an abortion, because similar symptoms could also be present in a woman who had a miscarriage, or in a woman who completed giving birth.
"The fact that she performed a D&C does not necessarily mean that there was a living embryo or fetus because you can have a D&C after a miscarriage," Barrett said. "Not all those D&Cs will involve a pregnancy that would otherwise be viable or an embryo or fetus that would otherwise be living because you can have complications or excessive bleeding even after the abortion is complete in that respect, but there's pregnancy tissue remaining."
Hawley argued emergency room doctors who object to abortion would be subjected to "broader conscience harm" and would be "complicit in the process" if they had to treat a woman who comes in with those rare symptoms.
"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 on the operating table," Hawley said.
Government lawyers said that's no reason to sue the FDA, but rather that doctors can take those conscience concerns directly to their own employer and easily resolve them.
Elizabeth Prelogar, the U.S. Solicitor General arguing on behalf of the federal government, said the group of religious doctors "never come out and specifically say, by one of their identified members, 'Here's the care I provided. Here's how it violated my conscience. And here's why conscience protections were unavailable to me.'"
"The fact that they don't have a doctor who's willing to submit that kind of sworn declaration in court, I think, demonstrates that the past harm hasn't happened," Prelogar said.
Several of the conservative-leaning justices on the nation's high court raised questions about standing and the possible remedies, suggesting they maintain some degree of skepticism toward the case.
Chief Justice John Roberts asked why the court should extend its ruling to the FDA, and by extension the entire country, when it could just tailor its ruling to impact the affected doctors.
Justice Neil Gorsuch criticized the scope of the lawsuit and suggested lower courts have improperly granted a "rash of universal injunctions," something the Supreme Court has never itself embraced.
"This case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule or any other federal government action," Gorsuch said.
Prelogar reiterated those points when she made her final arguments, and suggested this lawsuit was the wrong way to address a conscience objection.
"The problem here is they sued the FDA," Prelogar said. "FDA has nothing to do with enforcement of the conscience protections. That's all happening far downstream at the hospital level. And the only way to provide a remedy based on this theory of injury, therefore, was to grant this kind of nationwide relief that is so far removed from FDA regulatory authority, that it's ultimately requiring all women everywhere to change the conditions of use of this drug."
Hawley met the press outside the Supreme Court after making her case.
"Without question, the FDA's actions have made taking chemical abortion drugs less safe," she said.
In East St. Louis, not far from an abortion clinic that has seen a significant uptick in women seeking care from out of state, Congresswoman Nikki Budzinski (D-Illinois) responded to the arguments made in court.
"The doctor should be providing the best care for that woman in her unique situation," Budzinski said. "So I think that we should be putting aside our own personal beliefs to make sure that woman has access to her full range of health care options."
Congresswoman Cori Bush (D-Missouri) also reacted to a portion of the Supreme Court case.
Justices Samuel Alito and Clarence Thomas cited the Comstock Act of 1873 and asked lawyers for the government and pharmaceutical companies to answer why their mail-delivery of abortion pills doesn't violate that 151-year-old ban on mailing drugs.
"The Comstock Act must be repealed," U.S. Rep. Bush said in a social media post. "Enacted in 1873, it is a zombie statute, a dead law that the far-right is trying to reanimate. The anti-abortion movement wants to weaponize the Comstock Act as a quick route to a nationwide medication abortion ban. Not on our watch."
An aide from her office said Bush may be the first member of Congress to call for the repeal of that law since the Dobbs decision.
The court could issue its decision on the abortion pill this summer.