The Supreme Court of the United States heard oral arguments on Tuesday in a case that returned the issue of abortion to the high court almost two years after its justices repealed half a century of federal protection established by the historic ruling. Roe contra Wade (1973). They were discussing whether or not to restrict the use of mifepristone, the pill most used in combination with another pill called misoprostol to carry out pregnancy terminations. After 100 minutes of debate and questions about the reasons from both sides, the nine judges seemed to favor maintaining the current level of access to the drug in the United States. The sentence will not be known until the end of the judicial course, at the end of June.
Until that date arrives, it is only possible to interpret the attitudes of the magistrates during the hearing this Tuesday. And from this reading we can conclude that a majority – perhaps all of them, except the two most to the right, Samuel Alito and Clarence Thomas – understand that the plaintiffs, an association of anti-abortion Christian doctors created expressly To launch this judicial crusade, they have not demonstrated that they meet a requirement required by law: having suffered sufficient damage to be authorized to sue. The Supreme Court is made up of five men and four women. Three justices identify as liberal and six as conservative, three of whom were appointed by former President Donald Trump with the express task of changing the rules on abortion in the United States.
The case FDA Vs Alliance for Hipocratic Medicine (AHM) It has its origin in a lawsuit filed in November 2022 against the Drug Agency (FDA) in the heat of the controversial Supreme Court ruling that overturned the constitutional right to abortion in June of that year. That ruling returned to the States the power to regulate women's reproductive freedom. The AHM chose to start its judicial war in Amarillo (Texas), aware that Matthew Kacsmaryk, a conservative Christian judge, would be in charge of the case there, and that his decision would later be reviewed by an appeals court, the Fifth Circuit, also with a track record. inclined to your interests.
The first 15 minutes of the session in the solemn Supreme Court building in Washington – at whose doors protesters for and against abortion gathered hours before the hearing began – were spent discussing whether this “alliance for Hippocratic medicine ” have the legal standing to sue the FDA, given that they do not prescribe abortion pills as part of their practice. Elizabeth B. Prelogar, an attorney representing the agency, also argued that even if they did, it would be highly unlikely that they would encounter patients with complications resulting from the use of mifepristone; In one of the studies provided by the Administration, the number of these cases is set at 0.32%. The AHM states on the contrary, but without providing evidence, that “tens of thousands of complications” have been recorded.
The initial objective of the plaintiffs was to prohibit total access to the abortion pill, which, according to the latest data from the Guttmacher Institute, competes with misoprostol in 63% of pregnancy terminations carried out in the United States, a figure that has grown after the repeal of the sentence that overturned Roe. The first drug stops the production of progesterone and interrupts pregnancy; The second causes contractions in the patient and causes the expulsion of the fetus.
Kacsmaryk gave them the reason throughout in Amarillo, but the Fifth Circuit appeals court, which has jurisdiction over Texas, Louisiana and Mississippi, just them bought one part of the argument: the one that blames decisions in 2016 and 2021, which expanded access to the abortion pill by allowing its prescription by telemedicine and purchase by mail, for an alleged increase in problems derived from its more widespread use. Prelogar said there was no data to support this cause-effect relationship. For her part, Jessica Ellsworth, the lawyer who represented Danco, the pharmaceutical company that markets mifepristone, before the Supreme Court, recalled that two studies cited by the plaintiffs to argue that the drug is not safe were recently repudiated by the scientific journal that had published them. published, which was retracted.
Reduced deadline
If the Supreme Court contradicts the signals it issued this Tuesday, which are in no way conclusive, and agrees with the plaintiffs, mifepristone can continue to be prescribed, but only in person and with a limit of seven weeks, compared to the current 10. , which is the time during which science has shown that it is effective in terminating pregnancy. The new deadline would be equivalent in practice to a ban, since many women cannot know by then if they are pregnant.
Since the end of Roe contra Wade, 21 States have banned or severely restricted the right to abortion in the middle of a chaotic map of crossed legislation and court battles. In these territories, women have resorted to mifepristone more than before the ruling, because this saves them from long and expensive trips to other States to be able to access a surgical abortion in clinics that are often overwhelmed by the growing demand for the last two years. Studies show that after the Supreme Court ruling, the number of pregnancy terminations has increased rather than decreased in the United States.
Erin Hawley, a lawyer representing the AHM and wife of Missouri Republican Senator Josh Hawley, a prominent voice in the most conservative faction of the party, complained that the anti-abortion movement in the United States, which achieved a major victory from the Supreme Court in 2022 after four decades of fighting for it, he had suffered a loss for having had to concentrate his efforts on “explaining the dangers of abortive medications.” That argument was questioned even by Clarence Thomas, perhaps the judge most ideologically located to the right of the nine.
During the hearing another question also arose: would the Supreme Court follow the path of previous rulings with which they have reduced power to government agencies, as it did in 2023 with the EPA, in charge of environmental protection? The idea that their influence has grown too big is one of the favorite arguments of the hardest wing of the Republican Party. Another point of the FDA's defense is that if the high court agrees with the other party, that will open the floodgates so that any decision about a drug can be questioned based on political reasons. After what was heard this Tuesday, it seems that the judges will not use this case to delve into that strategy.
This will not be the only opportunity in which the high court intervenes this year on the issue of abortion, one of the issues that has done the most to deteriorate its image, more damaged than ever, before American public opinion. In April, they will examine the case Idaho v. United States, in which they must decide on the legality of a Midwestern state's anti-abortion rule. It is one of the most severe in the country. According to her detractors, she confronts doctors and nurses with a difficult-to-solve dilemma in cases where the mother's life is in danger if she is forced to continue with the pregnancy. If they carry out a termination of pregnancy, they risk, under Idaho law, losing their license or even ending up in jail. If not, they would contravene another regulation, this one of federal scope, which requires hospitals that offer emergency services to intervene if the patient's health is at stake.