The NPR Politics Podcast - SCOTUS Hears Abortion Pill Arguments

Episode Date: March 28, 2024

The Supreme Court heard a case this week about mifepristone, a drug used in medication abortions. Anti-abortion plaintiffs are suing the Food & Drug Administration, hoping to restrict access to the drug. But, justices seem skeptical of their arguments, and limits on use of the drug could have long-reaching implications beyond abortion.This podcast: White House correspondent Deepa Shivaram, political correspondent Danielle Kurtzleben, and health policy correspondent Selena Simmons-Duffin.This podcast was produced by Jeongyoon Han & Kelli Wessinger, and edited by Casey Morell. Our executive producer is Muthoni Muturi. Listen to every episode of the NPR Politics Podcast sponsor-free, unlock access to bonus episodes with more from the NPR Politics team, and support public media when you sign up for The NPR Politics Podcast+ at plus.npr.org/politics.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

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This podcast was recorded at 106 p.m. on Thursday, March 28, 2024. Things may have changed by the time you hear this, but one thing will stay the same. Music will heal your soul. That was so gentle and lovely. No kidding. And profound. Very cool to hear that. Hey there, it's the NPR Politics Podcast. I'm Deepa Shivaram. I cover the White House. I'm Danielle Kurtzleben. I cover the presidential campaign. And NPR health policy correspondent and friend of the pod, Selena Simmons-Deffen is with us. Hey, Selena. Hi, Deepa. Today on the show, the Supreme Court heard arguments this week about mifepristone, one of the drugs used in medication abortions, which is the

most common way to have an abortion. The court was arguing about how accessible this drug should be. So, Selena, let's start with the basics here. What is this case? When did it start? Who was suing whom? Why did this happen? Right. So this case was filed in November 2022. So just a few months after the Supreme Court overturned Roe v. Wade. And the basics of the case is that there was a group called the Alliance for Hippocratic Medicine that was also founded after the Supreme Court overturned Roe v. Wade. It's a group of anti-abortion groups, including the American Academy of Pro-Life Obstetrician Gynecologists and several other groups, some of whom include doctors. There were a couple

individual doctors who also joined the suit. And they sued FDA and said FDA shouldn't have approved mifepristone in 2000. So, you know, more than 20 years ago. They didn't follow the proper procedures. They didn't consider certain evidence. And they shouldn't have then in recent years made it easier to access. So they filed this case in a particular part of Texas where the only district federal judge is Matthew Kuzmarek. And he is a judge, Trump appointee, long history of ties to the anti-abortion movement. And he perhaps unsurprisingly issued a very favorable ruling for the plaintiffs and said, yes, FDA should never have approved this drug. Fifth Circuit Court of Appeals then heard the appeal. They issued a ruling that was like, OK, we're not going to consider the original approval. We're just going to say the FDA

shouldn't have made this easier to access in recent years. Got to the Supreme Court and oral arguments were heard this week. And the Supreme Court doesn't seem to be having it, basically, with this case. Right. And just to add on there and make this a bit more specific, that group, the Alliance for Hippocratic Medicine, did ask the Supreme Court, hey, could you take up this FDA 2000 approval? And the Supreme Court said no. But what the Supreme Court is specifically looking at here are FDA actions specifically in 2016 and 2021 to make mifepristone more available. And what the FDA did in those years is as follows. In 2016, the FDA said mifepristone could be used for up to 10 weeks of pregnancy gestation as opposed to up to seven weeks. And they also

lowered the dosage that is necessary. In addition, they started allowing nurse practitioners and physician's assistants to prescribe it, not just medical doctors. Then in 2021, remember, this was mid-pandemic. The FDA said, okay, since people might not feel safe or be safe going to a doctor's office, this pill can now be dispensed via telemedicine temporarily. So you don't have to go in person to get it. Then in 2023, seeing that this was safe and saying that this was safe, the FDA said, you know what, that's not temporary anymore. So what the Alliance for Hippocratic Medicine is arguing here is, you know what, roll all of that back. Those made it too available. Okay. So just to sum up here, because there's a lot of information, this group is not arguing that Mifepristone should be like banned completely. Well, they started with that. They did want the original

approval to go away, but the Supreme Court declined to consider that, which is why the Supreme Court was hearing two questions. First of all, does this group have the right to sue FDA over this? And second of all, did FDA do a bad job when it made these decisions on the basis of the safety and efficacy of this drug to make it more easy to access? Okay, so this group that's suing the FDA, this is the Alliance for Hippocratic Medicine, like you said, I mean, they have to have some kind of an argument here for the harm that they are experiencing, right? Or the harm being caused? What is the argument that they're making? So the harm that they're arguing is that because these drugs are now quite widely available,

you can order them online, you can chat with a provider, answer some questions about your latest period and how far along you are, et cetera, et cetera, and receive medication in the mail. They're saying because that is so easy for people to do now and it's becoming more widespread, the chances that an anti-abortion doctor might theoretically have to treat a patient suffering from an adverse event because of these medications increases. It is extremely small, that chance, because it is a very safe drug and adverse events are very rare. And as came up during oral arguments, the doctors who were

submitting declarations about their beliefs and about their potential harm as a result of this new accessibility live in states where abortion is banned. So there are not a whole lot of abortions happening. Examples, right. It seems very narrow. Yeah. I mean, it's a remote possibility that the FDA, the Solicitor General, and the attorney for the drug maker, Danko, which was also defending its drug here, were making the point this is like a really quite long chain of events that would need to happen. There are third parties that would need to make certain decisions for that to even be a scenario that could come to pass. And there isn't a situation that the Alliance Defending Freedom, the attorneys here been on the market for so long, 5 million people have taken this medication, and there is no doctor who can say, this happened to me and I was harmed and it could happen again.

That really made the case feel like it was on weak ground. So one thing to add here is that this is the first time the Supreme Court has taken up abortion post-Dobbs. But this is not a broad case about whether abortion is good or bad, even if people on either side do have strong feelings in that way. This is a case about doctors prescribing mifepristone, right? So even while people who are opposed to abortion rights, they would argue that the unborn are harmed by mifepristone. That is not a part of this case. That is not an argument that is being made. This case is purely about, is the injury done to the doctors prescribing the mifepristone and or dealing with whatever might happen after someone is prescribed mifepristone? We're going to take

a quick break, and there are a lot of legal implications here, but also so many implications medically and politically. We'll get into it on the other side. And we're back. Danielle, there's a conservative argument for keeping mifepristone legal, and it's sort of rooted on a different side of things, like talking about it from a business perspective. Can you walk us through that? Exactly. As you said, this is this is not a socially conservative argument. This is a sort of Chamber of Commerce conservative argument. And you can really see it in an amicus brief that was submitted by pharmaceutical companies, executives and investors to the courts. And they were arguing, if you allow the Alliance for Hippocratic Medicine to have this standing, it's going to create chaos in our industry. One of the quotes

in it really kind of sums it up from their perspective. It could chill crucial research and drug development, undermine the viability of investments in this important sector, and wreak havoc on drug development and approval generally, irreparably harming patients, providers, and the entire pharmaceutical industry. If you allow this, you're going to allow any number of people to try to challenge the FDA on any amount of their drug approval process. And that is just going to blow up our industry. And seeing the word investments in there, drug development and approval generally for a case that is going to be talked about so much and is talked about so much in terms of conscience and morals and freedom and liberty and that sort of thing. This is very much a business case and just a flat out logistical and legal don't explode the pretty settled ground we have here, Case. Medically, I mean, this could be really groundbreaking in a lot of crazy ways if something like mifepristone were to be limited. I mean,

what else could happen? Yeah, I think I would like to point out that from the medical perspective, the fact that judges who don't have a lot of experience looking at scientific papers and parsing out risks and benefits, the fact that judges could be replacing their view on a drug with that of FDA experts who literally spend years with like unbelievable amounts of documents and data, assessing it and using their expert opinions to like decide what the regime should be in terms of prescribing this medication and to make it the safest and most effective it can be for people. That's really alarming. And it feels destabilizing, not just from the like pharmaceutical business side, but in terms of the ripple effects that this could have in terms of the ripple effects that this could have in terms of care, one thing that did not come up in oral arguments that I think is important for people to understand is that this drug is also used for miscarriage treatment. And how that

works is that it's a drug that blocks a hormone called progesterone, which, fun fact, stands for progestation. It is necessary for a pregnancy to continue. And if the fetus has stopped growing, it's considered a miscarriage. If your progesterone levels are not climbing, that's considered a miscarriage. But it can take a really long time for your body to figure that out and to complete it, essentially. People use this medication to get some control over that process, to shorten the process. And it's exactly the same regimen that people take when they're having an abortion. It's one dose of mifepristone and then one dose of misoprostol, which is another drug that actually causes cramping. And we should also just point out that miscarriages are also quite common. Like that is not an uncommon thing that people experience during a pregnancy. To say the least. Yeah. Yeah. I mean, it's like one in four pregnancies end in miscarriage and one in five pregnancy ends

in abortion. So these drugs are being used a lot by a lot of people and they're really important to reproductive care in general. These are tools in the toolbox for people who are providing reproductive care. And the idea that the federal courts could take away those tools, not based on new evidence, but based on an ideological argument is extremely alarming. Okay. So another thing that kept coming up in this case that I want you guys to weigh in on is the mention of the Comstock Act. And to catch people up here, this is a 19th century law on the books that bans people from sending things through the mail that are deemed obscene. That has been in the background of this case. I feel like I keep seeing it come up. A Texas judge in this case

ruled that drugs inducing abortion like Mifepristone cannot be sent through the mail based on this law. How much water does that argument hold? Right. The Comstock Act is a law that was trying to limit the spread of obscene material. And it specifically does cite materials related to abortion through the U.S. mail. Now, the reason this is coming up is because it was asked about during oral arguments. Justice Alito asked the lawyer for the government, why didn't the FDA consider the Comstock Act? And the lawyer said, well, the FDA didn't have to. But to just take a step back, prior to Dobbs, the Comstock Act was just considered moot, especially in the case of abortion, right? Because Roe v. Wade protected

the right to an abortion. So the Comstock Act, while it is on the books, just was not seen as enforceable. With the fall of Roe, now it is once again a thing that people are considering. And by the way, you are not just going to hear about it in the context of this Supreme Court case, the Comstock Act is very much a part of the 2024 presidential election because of Project 2025. Slight digression here, but please go with me. This is very important. Project 2025, which we have talked about on this podcast before, is a framework that a bunch of conservative organizations have put together to say, hey, here's a potential roadmap that a Republican president could use once they are president. And part of Project 2025 is, hey, you can use the Comstock Act to really shut down abortions in the United States without an act of Congress and without judges having to do anything. It is absolutely monumental that Supreme Court justices are citing it right

now and that it is back in the United States political conversation. And you are going to hear about it much, much more going forward. SONIA DARA, Ph.D.: Anti-abortion groups are starting to talk about this. And it was included in the brief from the Alliance Defending Freedom talking about the plain language of the Comstock Act, which I heard from Mary Ziegler, a well-known law professor who studies abortion. She says hasn't been used or enforced regarding abortion since the 1930s. So the reason why it could be a full abortion ban, we're not just talking about pills through the mail telemedicine, we're talking about a full abortion ban because there is no abortion that happens in the U.S. that does not involve things coming through the mail.

There is not an abortion that can happen in the U.S. that does not involve something coming through the mail. That means that- Any equipment for any abortion clinic. Gloves. Because it's used for that use. It's not even just like something that can only be used for that. It's something that is like part of the process. Right. Let alone birth control, let alone hormones for IVF, let alone who knows what, because this hasn't been enforced for so many decades. The outlines of this law are not set at all. Right. And the Comstock Act is also quite broad. And so it is against the sending of anything that is deemed, quote unquote, obscene, which gives the executive branch, theoretically, quite a bit of leeway in determining what can be sent through the mail. really big potential effects. The fact that this came up in the normal course of oral arguments, this law that has not been enforced since the 1930s, again, to sort of sum up, that is a huge

deal. Okay. So we're coming back to the court again, full circle here. If the court says that this group, right, that's bringing this case forward doesn't have the right to do so, they rule against this argument, is that the end all be all of things? I mean, is it possible that this could come up in a different argument, essentially? I don't even think that's the end of this case, if that's what they decide, because states from places that have banned or restricted abortion have intervened in this case to say, if this drug is widely available, we can't enforce our anti-abortion laws. And Judge Kazmarek in Texas has allowed them to do that.

So this case could go all the way back up to the Supreme Court with a different set of plaintiffs. This is a big problem for people who want to see fewer abortions in this country. The most recent data shows that abortions are increasing. There were more than a million abortions in 2023, which is the first time that's happened in over a decade. And 63% of those are using these pills. And there's a conservative judiciary. So there's no, really no downside to these groups to try continuing to bring this up with different plaintiffs or different arguments to try to tamp

down on the use of this medication. So this is just the beginning. For sure. And to add to what Selena was saying, even leaving aside the legal side of things, to come back to Project 2025, that document does call for trying to have the FDA either get rid of the approval of Mifepristone altogether or at the very least roll back those recent loosenings of the rules around Mifepristone. So even if the Supreme Court bounces this case, the impulse to try to restrict access to abortion drugs very much will still be there. OK, a lot to digest here and still a lot more to talk about. But we're going to leave it there for today. Selena Simmons-Duffin,

thank you as always for joining us. Thanks for having me. We'll be back in your feeds tomorrow with the Weekly Roundup. I'm Deepa Shibaram. I cover the White House. And I'm Danielle Kurtzleben. I cover the presidential campaign.

And thank you for listening to the NPR Politics Podcast.