In the first major abortion case to reach the Supreme Court since it overturned Roe v. Wade nearly two years ago, court observers say a majority of justices across the spectrum questioned if the doctors bringing the case had legal grounds to sue and appeared unlikely to rule in favor of a crackdown on abortion drugs. 

The case, U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine, centers around whether the Food and Drug Administration’s removal of chemical abortion safeguards when it widened access to mifepristone — the first of two drugs used in chemical abortions — put women at risk. Its challenge of the federal agency could also have implications for the larger regulatory issues and the administrative state. 

If the case is weighed on the merits, it could have wide-ranging effects on abortion in America — where in 2023, there were more than 642,000 drug-induced abortions, representing 63 percent of total abortions, the Guttmacher Institute’s data show. The arguments on Tuesday drew hundreds of protesters outside of the court, both for and against abortion drugs. 

The case was brought by the Alliance Defending Freedom on behalf of doctors who say they are “called on to provide emergency care for many women facing crises because of the FDA’s reckless actions.” The doctors say that when the agency removed rules requiring in-person doctor visits and follow up reporting on the drugs, it betrayed women who should be seen by doctors before taking the “high-risk drugs.”

The doctors’ filing notes that chemical abortion drugs can cause severe injuries to pregnant women and are 50 percent “more likely than surgical abortions to result in an emergency department visit within thirty days.”

Arguing the case for the Alliance Defending Freedom was Senator Hawley’s wife, Erin Hawley. 

“This case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule or any other government action,” Justice Neil Gorsuch said to Ms. Hawley of the plaintiff’s claims. 

Justice Elena Kagan, too, pressed Ms. Hawley, saying, “You need a person” who has met standing requirements. “Who’s your person?” she asked. Also appearing skeptical was Justice Ketanji Brown Jackson. She asked the lawyer representing the mifepristone manufacturer, Danco, if the company was concerned about “judges parsing medical and scientific studies” rather than FDA experts. 

The federal government, represented by the solicitor general, Elizabeth Prelogar, argued that an “exceptionally small number” of women suffer complications from the drug. Furthermore, she argued the doctors bringing the case lacked standing because no one is forcing them to prescribe the pills or treat women who take the drugs. 

One dissenting voice was Justice Samuel Alito, who sparred with Ms. Prelogar on the standing issue. “Is there anybody who can sue and get a judicial ruling on whether what FDA did was lawful?” he asked. “Shouldn’t somebody be able to challenge that in court? Who?” 

Ms. Prelogar acknowledged that for this case it would be “hard to identify anyone who would have standing to sue” but said that it still doesn’t mean the court should depart from Article III standing requirements. 

“So your argument is that it doesn’t matter if FDA flagrantly violated the law, didn’t do what it should have done, endangered the health of women, it’s just too bad, nobody can sue in court,” Justice Alito said. “There’s no remedy, the American people have no remedy for that?”