In abortion pill arguments, Supreme Court justices seem skeptical about FDA accountability experts say

The Supreme Court on Tuesday heard arguments challenging the Food and Drug Administration’s (FDA) relaxed regulations on a widely prescribed abortion pill, and while legal experts say that the case could be tossed due to a lack of standing, the justices appeared skeptical of the idea that the FDA could face no liability. 

Erin Hawley, senior counsel for Alliance Defending Freedom, argued the case on behalf of a group of doctors challenging the FDA’s loose access restrictions on mifepristone. 

While the justices seemed skeptical that the doctors had standing to sue, they did seem to take issue with the lack of accountability for the FDA for any harms caused by the abortion pill.  

“It’s quite troubling. It’s one thing to say no one has standing in a taxpayer case where it affects everyone. Here you have the FDA who’s not publicly accountable at all really, and has continually deregulated mifepristone. So I think that will be something the court really struggles with,” Hawley said. 

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The U.S. Supreme Court. (AP Photo/Mariam Zuhaib, File)

Justice Samuel Alito at one point questioned Solicitor General Elizabeth Prelogar, arguing for the FDA. 

“The statement was made that no court has ever previously second-guessed the FDA’s judgment about access to a drug,” he said. “It’s never second-guessed that? Do you think the FDA is infallible?

“So your argument is that it doesn’t matter if FDA flagrantly violated the law or didn’t do what it should have done, endanger the health of women,” he said.

“It’s just too bad, and nobody can sue in court?” he pressed. 

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Associate Justice Samuel Alito  (AP Photo/J. Scott Applewhite, File)

Thomas Jipping, senior fellow at the Heritage Foundation, said that Alito’s questioning may have revealed his thinking on who has standing in such a matter. 

“If you take a view of standing that results, not in these plaintiffs cannot sue, but no one can sue, maybe your view of standing is kind of misguided in the first place.,” he said. “That was an interesting one.”

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Lawyer Erin Hawley of the Alliance Defending Freedom and wife of U.S. Senator Josh Hawley (R-MO), speaks with the media outside the U.S. Supreme Court as justices hear oral arguments in a bid by President Joe Bidens administration to preserve broad access to the abortion pill, outside the court in Washington, U.S., March 26, 2024.  (REUTERS/Evelyn Hockstein)

“Sometimes justices ask questions, not only just for an answer on a specific legal question, but kind of they ask questions that are related to a train of thought, something that they’ve been considering,” Jipping said. 

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“Maybe they’ve been talking about with their clerks sort of thinking out loud. And that was clearly one, that for Justice Alito and the Chief Justice. was the significant one,” he added.