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Supreme Court rejects challenge to abortion pill accessibility


The U.S. Supreme Court tossed out a challenge to the FDA's rules for prescribing and dispensing abortion pills today. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: By a unanimous vote, the court said the anti-abortion doctors who brought the challenge had failed to show they'd been harmed as they do not prescribe the medication and are protected by federal law from being forced to participate in any abortion procedure. The court's action amounted to a legal off-ramp, leaving the FDA rules in place without directly addressing the regulations themselves. The challengers had contended there was a statistical possibility that some physicians could at some future time be forced to work in emergency rooms, where they'd be called upon to treat patients suffering from complications after taking abortion medication. They said that such a situation would subject them to choosing between their consciences and their professional obligations.

But Justice Brett Kavanaugh, writing for the unanimous court, dismissed that and every other conceivable argument advanced by the challengers. As he observed, federal law explicitly says that doctors cannot be forced to perform or assist in abortions or to treat patients with complications from mifepristone. Similarly, he wrote, doctors have no generalized right to sue because they object to a government policy.

The court's decision also avoided, at least for now, a challenge to the entire structure of the FDA's regulatory power to approve drugs and continually evaluate their safety, a system that, for decades, has been widely viewed as the gold standard for both safety and innovation. Indeed, Kavanaugh observed that in the FDA drug approval context, quote, "virtually all drugs come with some complications, risks and side effects. But doctors have never had standing to challenge the FDA's drug approvals simply on the theory that the use of the drug by others may cause more visits to the doctor," he said.

MELISSA MURRAY: I think this case presents the court in a favorable light.

TOTENBERG: NYU law professor Melissa Murray.

MURRAY: I think the way most media will cover this is that the court has salvaged medication abortion access, and that's a really good thing given that the majority of abortions in the United States right now occur using medication abortion as opposed to surgical elements.

TOTENBERG: But she adds...

MURRAY: This is not a sweeping victory. This is, in my view, likely just a resting place, a way station. There will be another case. There will be another challenge to medication abortion.

TOTENBERG: Future challenges, she says, could come from conservative states that could reasonably argue that the FDA's accessibility regulations could render restrictive state laws moot.

MURRAY: I mean, if you can just move it into your home and get it through the mail, it doesn't matter what the state is doing as a matter of public law.

TOTENBERG: Mary Ziegler, a professor at UC Davis, who's written multiple books on the history and politics of abortion, also sees a fraught future. She says that many prominent conservative groups and individuals who served in the first Trump administration have focused their attention on getting Trump, if he's reelected, to ban all abortions under the Comstock Act, an 1873 anti-obscenity law that also banned all contraception and abortion materials from the mail. The law has not been enforced for at least a half century and likely much longer. Mary Ziegler.

MARY ZIEGLER: If you had told me that prominent conservative groups were going to be investing this much in turning the Comstock Act into a ban and making it the cornerstone of what they hoped a second Trump administration would do, I wouldn't have believed you a few years ago. I would have said that's just way too politically counterproductive. And yet, here we are.

TOTENBERG: Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.