Observer says Supreme Court may find pro-life doctors lack standing in abortion case

 March 29, 2024

The Supreme Court heard arguments this week over whether a group of pro-life doctors can challenge the Food and Drug Administration's (FDA) decision to relax regulations on mifepristone, a drug used to induce abortions.

While a ruling isn't expected for months, some observers think the doctors' case is headed for a dismissal. 

Justices confirm that doctors enjoy conscience protections

They include long-time New Yorker contributor Amy Davidson Sorkin who noted in a piece published on Wednesday how "even some conservative justices seemed unpersuaded."

She pointed to questions posed by Justices Brett Kavanaugh and Amy Coney Barrett, both of whom agreed in Dobbs v. Jackson Women’s Health Organization that abortion is not a constitutionally protected right.

Kavanaugh at one point asked Solicitor General Elizabeth Prelogar to confirm that pro-life doctors are exempted from having to carry out abortions or help others do so.

Prelogar said that they are, pointed to how the law currently prohibits any federally funded entity from compelling health care workers to assist with abortions and noted that many states extend further protections.

Barrett followed up by asking if this would also shield doctors from having to participate in post-abortion dilation and curettages, with Prelogar confirming that it would.

Plaintiff's attorney points to "emergency nature" of what doctors face

Sorkin pointed out that those questions suggest skepticism as to whether the plaintiff actually faced harm that would grant them standing to file a lawsuit.

Erin Hawley represents the Alliance for Hippocratic Medicine (the group to which the doctors belong), and she argued that its members may suffer a "conscience injury" should they need to treat a patient who required care after taking mifepristone.

Hawley went on to contend that existing laws are insufficient to preclude this possibility given the "emergency nature" of situations that doctors may encounter.

She pointed to the fact that some women who live in jurisdictions which ban abortion travel across state lines to obtain mifepristone and then "turn E.R. rooms into those follow-up visits."

Justice Alito appeared sympathetic to Hawley's argument

That did not seem to satisfy Justice Neil Gorsuch, who remarked, "We have before us a handful of individuals who have asserted a conscience objection."

"And this case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on—on—on an F.D.A. rule or any other federal-government action," he added.

However, Sorkin acknowledged that Justice Samuel Alito appeared far more sympathetic to Hawley's rationale while sounding "almost openly hostile to the F.D.A."

" A free people [claim] their rights, as derived from the laws of nature."
Thomas Jefferson
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