Justices Barrett and Kavanaugh overturned Roe v. Wade. Why they may save access to the abortion pill

By Joan Biskupic, CNN Senior Supreme Court Analyst

(CNN) — Justices Brett Kavanaugh and Amy Coney Barrett often link arms on cases, particularly when it comes to abortion and reproductive rights.

And these two Donald Trump appointees with similar backgrounds and sensibilities shared a distinct concern Tuesday during oral arguments over Food and Drug Administration regulation of the abortion pill mifepristone: Whether any doctor had been forced, against his or her conscience, to participate in an abortion.

Kavanaugh asked only one question during the 90 minutes of argument – and it was essentially that. Barrett was more active, but her queries appeared animated by the same concern for doctors who would have religious or moral objections to abortion.

“Just to confirm on the standing issue, under federal law, no doctors can be forced against their consciences to perform or assist in an abortion, correct?” Kavanaugh asked Solicitor General Elizabeth Prelogar, arguing for the Biden administration.

“Yes,” Prelogar answered.

At bottom, the justices exposed weaknesses in the arguments of a conservative Christian group that has been their ideological ally, suggesting by their comments that the mifepristone opponents had failed to persuade them they had been harmed by the FDA’s approval and oversight of the drug. As a result, they would lack legal “standing” to even bring the case.

Kavanaugh and Barrett were Trump’s second and third appointments to the bench, in 2018 and 2020. They’d been close friends before serving together, having taken similar turns in their early careers, first as Supreme Court law clerks and then eventually to federal appellate posts. Both are Catholic, as are four of the other nine justices.

Yet if these crucial justices in the conservative supermajority – two who often determine a case’s outcome – follow their tendency from arguments, it could mean that the final ruling leaves intact FDA’s rules for access to abortion drugs. A ruling is expected by the end of June.

Abortion returns to the high court

Tuesday’s case, which drew hundreds of demonstrators to the front of the columned court structure, was the first abortion controversy since the high court’s 2022 reversal of Roe v. Wade and the constitutional right to abortion. Kavanaugh and Barrett were part of that 5-4 majority.

Since the decision in Dobbs v. Jackson Women’s Health Organization, more than 20 states have either banned or significantly restricted abortion, and women’s reliance on abortions with mifepristone, the first in a two-drug regimen used to terminate a fetus in the early weeks, has increased. The Guttmacher Institute reported that 63% of women in America who terminated a pregnancy in 2023 used medication, rather than undergoing a surgical procedure.

The stakes of the new case involve not only access to mifepristone but the FDA’s broader ability to assess the safety and effectiveness of any drug, whether related to pregnancy or such conditions as epilepsy, diabetes or cancer.

Overall, the tenor of the arguments demonstrated the shaky position of the anti-abortion doctors in the Alliance for Hippocratic Medicine.

They do not prescribe mifepristone.

But they contend that because they undertake emergency room duties, they could be pressed to care for women who have complications from medication abortion. They said that when restrictions were loosened in 2016 and 2021, the FDA increased the chances for people with ectopic pregnancies and other dangerous conditions to need emergency room care.

The challengers strategically filed their case in a Texas district with a likeminded judge, US District Court Judge Matthew Kacsmaryk, and won there and then largely prevailed before the 5th US Circuit Court of Appeals, known for its own conservative muscle.

But at the Supreme Court, only two justices, Clarence Thomas and Samuel Alito on the far right, voiced any deep sympathy for the approach the challengers had taken. They suggested that they made a case for injury and as well as the grounds to attack FDA’s assessment of the drug’s safety and use.

Since mifepristone first was approved for market in 2000, it has been used by more than 5 million American women. The FDA says it lifted certain restrictions over the years only after comprehensive review.

Among the disputed provisions are those allowing the abortion medication to be available through 10 weeks of pregnancy (rather than only up to seven weeks) and to be dispensed by mail (rather than an in-person appointment).

Barrett asks about conscience and standing. The liberals help out

Much of the questioning at the court was directed at the conscience injury the doctors say they have suffered.

Prelogar, up first at the lectern appealing the lower court decision against the FDA, contended longstanding federal conscience protections already apply to doctors who refuse on religious or moral grounds to perform an abortion.

“I just want to be clear,” Barrett pressed Prelogar, specifically asking about emergency room physicians, “it is your position that such doctors would have recourse to the conscience protections of federal law?”

“Yes, absolutely,” Prelogar answered, adding that “hospitals have all kinds of plans in place to address these types of contingencies. You know, they have staffing plans. I understand, as a matter of best practices, they often ask for doctors to articulate their conscience objections in advance so they can take account of that in staffing.”

Liberal Justice Elena Kagan later picked up on that thread, telling Prelogar, “General, if I could take you back to the discussion you were having with Justice Barrett about the conscience objection” and giving Prelogar a chance to reinforce the government’s position that the challengers had not identified a single doctor who had been, or would be, forced to treat a mifepristone patient.

“They object to ending the life of a human being in the womb and fear that they might have to complete an abortion for a woman who has an ongoing pregnancy,” Prelogar said, adding that conscience protections tracing to the 1970s were intended to deal with such scenarios.

When Kavanaugh followed up with his related question, Prelogar said, “We think that federal conscience protections provide broad coverage here. … There are also state law protections that often apply in this context.”

Moments later, liberal Justice Ketanji Brown Jackson also raised the subject that preoccupied Barrett and Kavanaugh, as she also noted the challengers had sought a nationwide injunction restricting mifepristone’s access and use.

“I’m worried that there is a significant mismatch in this case between the claimed injury and the remedy that’s being sought and that that might or should matter for standing purposes,” Jackson said, addressing Prelogar.

However, Jackson said, “They’re saying, because we object to having to be forced to participate in this procedure, we’re seeking an order preventing anyone from having access to these drugs at all. And I guess I’m just trying to understand how they could possibly be entitled to that given the injury that they have alleged.”

Prelogar, agreed, saying, “I do think it’s relevant to standing. There’s a profound mismatch here between the claimed injury and the remedy they were seeking.”

When Erin Hawley, representing the anti-abortion doctors, urged the justices to uphold the 5th Circuit’s decision, Barrett again homed in on the doctors’ claimed injuries.

She noted the Hawley had submitted a declaration from a doctor who said she’d performed a procedure to remove tissue from inside a woman’s uterus, dilation and curettage, commonly referred to as a D&C.

Barrett observed that “a D&C does not necessarily mean that there was a living embryo or a fetus because you can have a D&C after, you know, a miscarriage.”

“I think the difficulty here,” Barrett continued, “is that, at least to me, these (doctors’) affidavits do read more like the conscience objection is strictly to actually participating in the abortion to end the life of the embryo or fetus. And I don’t read either (doctor) to say that they ever participated in that.”

“Conscience harms,” Hawley contended, “extend beyond simply requiring the ending of an unborn life.”

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