Most of the nine justices of the US Supreme Court appeared Tuesday resistant to reinstating restrictions on access to mifepristone, a pill used in the majority of abortions in the United States.
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By its historic judgment of June 2022 annulling the federal guarantee of the right to abortion, the Court with a conservative majority gave states full latitude to legislate in this area. Since then, around twenty have banned abortion (voluntary termination of pregnancy), whether carried out by medication or surgery, or have strictly regulated it.
An appeals court, made up of ultraconservative judges, reinstated in 2023 several of the restrictions on access to mifepristone, a pill used for medical abortions, lifted by the American Medicines Agency (FDA) since 2016.
Citing potential risks that have been ruled out by scientific consensus, this decision would reduce the limit of ten weeks of pregnancy to seven, prohibit the sending of tablets by post and would once again make prescription exclusively by a doctor compulsory.
The administration of Democratic President Joe Biden and the manufacturer of mifepristone, the Danco laboratory, are asking the nine judges of the Supreme Court to overturn this decision, currently suspended.
They notably contest the “interest in taking action”, a condition for taking legal action, of the plaintiffs — namely associations of doctors or practitioners hostile to abortion who neither prescribe nor use this pill — due to the nature highly hypothetical of the harm they invoke.
But for plaintiffs’ lawyer Erin Hawley, the FDA’s relaxation of access to mifepristone “forces these doctors to choose between helping a woman whose life is in danger and violating their conscience.”
“Very slight risk”
Biden administration legal advisor Elizabeth Prelogar responded by emphasizing the rarity of such a situation.
“They say they fear that an emergency room doctor somewhere, one day, will be faced with a woman suffering from an incredibly rare complication and that doctor will have to treat her despite the protections provided in the event of moral objection.”
“What the court of appeal has done to protect them from this very slight risk is to make a decision of national scope which reduces access to mifepristone for all women in this country and which causes considerable harm,” he said. -she continued.
Liberal Supreme Court Justice Ketanji Brown Jackson pointed out the “significant discrepancy” between the very specific dimension of the alleged harm and the magnitude of the decision demanded by anti-abortion practitioners.
“This file is a perfect example of transforming what could be a small procedure into a national consultation on an FDA rule or any other federal action,” added his conservative colleague Neil Gorsuch.
The Biden administration and the laboratory assure, unlike the plaintiffs, that the FDA followed legal procedures and emphasize that no scientific evidence demonstrates an increased risk for patients.
The laboratory’s lawyer, Jessica Ellsworth, warned against interference by the courts in the regulation of the pharmaceutical industry.
“The judges are not specialists in statistics or the methodology used in scientific studies of clinical trials,” she recalled.
The courts are not able to verify the accuracy of the “hundreds of pages of analysis of scientific data placed in the file by the FDA,” she added.
Several dozen pro- and anti-abortion demonstrators gathered Tuesday morning in front of the Supreme Court. Some brandished signs calling for the abortion pill to be authorized in the country’s 50 states, others asserting that it endangered women’s health.
Nearly two-thirds of abortions (63%) in the United States in 2023 were performed by medication, the Guttmacher Institute, a specialized research center, said last week.
The Court’s decision is expected by June 30.
Joe Biden has made the protection of the right to abortion a focus of his campaign for the November presidential election against his Republican predecessor Donald Trump, whose appointments to the Supreme Court resulted in the reversal of jurisprudence in June 2022.
