Reproductive rights before Supreme Court again with abortion pill access at stake

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• William Brangham:

  For the first time since Roe v. Wade was overturned two years ago, abortion is once again before the U.S. Supreme Court.

  The justices today heard a case that centers on access to the most widely used abortion pill, mifepristone. Outside, on the steps of the court, protesters marched, chanted and waved signs. Inside, arguments focused on the FDA's approval of the drug, patient safety, and protections for doctors with moral objections to abortion care.

  "NewsHour" Supreme Court analyst Marcia Coyle was there, and she joins us now to break down the case.

  Marcia, so good to have you back, as always.

• Marcia Coyle:

  Good to be here with you.

• William Brangham:

  One thing that we should note, this was not about the FDA's initial approval of mifepristone many, many years ago.

• Marcia Coyle:

  That's exactly right.

• William Brangham:

  This was about subsequent changes that the FDA made during the pandemic and otherwise to expand who could get it, when they could get it, and who could prescribe it.

• Marcia Coyle:

  Correct.

• William Brangham:

  What was being argued, in essence, by the challengers to this?

• Marcia Coyle:

  Well, if you focus only on the merits, which had to do with the changes that were made in 2016 and 2021, the challengers believe that those changes have created significant risk of harm to the women who take the pills, as well as are injuring doctors who have conscience objections to — especially emergency room doctors who may be forced to deal with the complications of the drug if it goes wrong for women.

  But really, William, the focus of the argument that — they were dominated actually by this question of standing, whether the challengers themselves, which is an umbrella organization for anti-abortion doctors and dentists, whether those challengers really had the legal right to bring this challenge to the FDA in the first instance.

• William Brangham:

  And the issue of standing is simply the legal principle that, in order to bring a claim, I have to prove that I was somehow injured or…

• Marcia Coyle:

  That's right.

• William Brangham:

  That's the issue here.

  In fact, let's — on that point, I mean, two of the justices who seemed sympathetic to the challengers, Alito and Thomas, Alito brought up this issue of standing. Let's take a listen to what he had to say.

• Samuel Alito, U.S. Supreme Court Associate Justice:

  How about a woman who suffers adverse consequences from having taken mifepristone? Would she be able to sue for damages, or you would say that's barred by sovereign immunity?

• Elizabeth Prelogar, U.S. Solicitor General:

  I expect that we would have sovereign immunity arguments in that kind of case.

• Samuel Alito:

  Who? In your view, who would have standing to bring that suit?

• Elizabeth Prelogar:

  I think that, with respect to these regulatory changes, it's hard to identify anyone who would have standing to sue.

• Samuel Alito:

  The American people have no remedy for that?

• William Brangham:

  So, explain a little bit. What is Alito arguing here?

• Marcia Coyle:

  Well, basically, he's saying that someone has to be able to challenge the FDA's action, and who can that be?

  But the truth is, no one — the court has never said that someone has to be able to challenge a federal law. The standing requirements are what they are. And the U.S. solicitor general, representing the FDA today, really kept focused on the challengers themselves.

  And what she said and believed is a very hypothetical injury that is rarely going to occur, based on voluminous studies done here at home and abroad about the safety and efficacy of the drug itself.

• William Brangham:

  Because none of these doctors, if I remember correctly, were actually saying that they themselves had to care for someone in those circumstances.

• Marcia Coyle:

  That's right.

  They have — the challengers have some declarations from a couple doctors that they believe show that they had to participate, despite their conscience objections.

  But, again, the government believes these are really — not only hypothetical problems, but very attenuated, from being traced back to the changes that the FDA made in 2016 and 2021.

• William Brangham:

  I see, because that's what's essential here.

• Marcia Coyle:

  Right.

• William Brangham:

  As I mentioned, the justices who were — sort of seemed to line up against this argument that they were making argue that there is no evidence of this.

  Justice Jackson took issue with this, and she felt that the challengers were proposing a very unequal remedy. Let's listen to what she said.

• Ketanji Brown Jackson, U.S. Supreme Court Associate Justice:

  So what they're 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.

• Erin Hawley, Attorney For Respondents:

  So with respect to the premise of that question, Justice Jackson, I don't think our doctors necessarily are able to object.

• Ketanji Brown Jackson:

  Assuming we have a world in which they can actually lodge the objections that you say that they have, my question is, isn't that enough to remedy their issue? Do we have to also entertain your argument that no one else in the world can have this drug?

• Marcia Coyle:

  Justice Jackson was reiterating something that Justice Kagan also said, that, in the normal course, when you have an objection based on conscience, the court or the law will provide an exemption for you.

  And federal law, as the solicitor general pointed out and emphasized several times, does protect objections based on conscience. The challengers, however, don't feel it's sufficient. They feel that, in an emergency situation, doctors don't have time to raise an objection.

  However, Justice Jackson pointed out as well that most hospitals today have procedures, and objections based on conscience are known.

• William Brangham:

  You have always cautioned me to never try to interpret from oral arguments what's going to actually happen.

• Marcia Coyle:

  True.

• William Brangham:

  I'm going to disregard your good advice…

• Marcia Coyle:

  OK.

  (Laughter)

• William Brangham:

  … and ask you, what is your sense of, from today's arguments, how this might go?

• Marcia Coyle:

  I think I would say I see a majority of justices who will rule in favor of the FDA, primarily on the standing question.

  I think that Justices Thomas and Alito may not go along with the majority in that, but I'm not even sure that Justice Thomas would be a dissenter, because he had some very good questions about standing as well. So that's my gut feeling at this point.

• William Brangham:

  Well, we always like to trust your gut.

  (Laughter)

• William Brangham:

  Marcia Coyle, thank you so much, as always.

• Marcia Coyle:

  My pleasure.