A majority of the Supreme Court appeared deeply skeptical on Tuesday over efforts to curtail access to a widely used abortion pill, calling into question whether a group of anti-abortion doctors and organizations had a right to challenge the Food and Drug Administration’s approval of the medication.

Only two justices, the conservatives Samuel A. Alito Jr. and Clarence Thomas, appeared to show some support for the anti-abortion challengers.

Describing the case as an effort by “a handful of individuals,” Justice Neil M. Gorsuch raised whether it would stand as “a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an F.D.A. rule or any other federal government action.”

His pointed questioning over nearly two hours of argument was echoed by other justices, who asked whether any of the doctors involved in the lawsuit could show an actual injury from the federal government’s approval and regulation of mifepristone, a medication used in nearly two-thirds of abortions in the country.

At one point, Justice Elena Kagan asked the lawyer for the anti-abortion groups who they were relying on to show an actual injury from the drug.

“You need a person,” Justice Kagan said. “So who’s your person?”

The case put the issue of abortion once again before the court, less than two years after a conservative majority eliminated the constitutional right to abortion and said it would cede the question of access “to the people and their elected representatives.”

A decision by the justices, expected by late June, could cut off prescriptions by telemedicine and pills sent by mail, two changes in recent years that broadened distribution. It could also have implications for the regulatory authority of the Food and Drug Administration, potentially calling into question the agency’s ability to approve and distribute other drugs.

The current challenge involves mifepristone, a drug approved by the F.D.A. more than two decades ago. At issue is whether the agency acted appropriately in expanding access to the drug in 2016 and again in 2021.

But much of the argument focused not on the recent changes by the F.D.A. or the broader implications for the pharmaceutical industry but rather on the underlying statements by anti-abortion doctors and whether their claims were enough to bring the case in the first place.

To bring the legal challenge, the anti-abortion doctors and groups must show that they will suffer concrete harm if the pill remains widely available. Lawyers call this requirement standing.

Here’s what else to know:

  • Justice Ketanji Brown Jackson noted a mismatch between what the anti-abortion doctors claimed they have experienced and the remedy they are seeking, with Justice Neil M. Gorsuch later raising a similar point. The doctors assert that it offends their moral beliefs to care for patients who have taken abortion pills, but they are asking the court to impose restrictions on the pill that would drastically limit its availability for all patients. Justice Jackson and Solicitor General Elizabeth B. Prelogar both noted that the plaintiffs’ objections could be satisfied by a right they already have: federal conscience protections that allow them to opt out of providing care they morally object to.

  • The case began in November 2022, when a group of anti-abortion doctors and medical organizations sued the F.D.A., asserting that the agency erred when it approved the drug in 2000. The coalition brought the challenge in Amarillo, a city in the Texas Panhandle where a single federal judge heard all new civil cases. The move all but guaranteed that Judge Matthew J. Kacsmaryk, a Trump appointee openly opposed to abortion, would be assigned the case.

  • Last March, Judge Kacsmaryk issued a preliminary ruling invalidating approval of the drug and taking the pill off the market. The Biden administration asked the Supreme Court to intervene after a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, one of the country’s most conservative appeals courts, determined in August that mifepristone should remain legal but imposed significant restrictions on access that are now on hold.

Adam Liptak and Pam Belluck contributed reporting.


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Credit: NYTimes.com

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