US Supreme Court hears arguments in abortion pill case

U.S. Supreme Court justices on Tuesday did not appear ready to limit access to the abortion pill mifepristone, in a case that could have far-reaching implications for millions of American women and for scores of drugs regulated by the Food and Drug Administration. 

It’s the first abortion-related case the court has taken since a majority of the current justices struck down the constitutional right to abortion in 2022.

A group of anti-abortion doctors had asked the court to restrict access to mifepristone and to limit when in a pregnancy it could be used. 

Key moments from the arguments:

The FDA approved mifepristone in 2000 as a safe and effective way to end early pregnancies. Last year the pill was used in more than six in 10 of the abortions in the U.S.

The central argument of the conservative group challenging mifepristone is that the Food and Drug Administration overlooked serious problems with the drug when it eased restrictions on the drug, including making it available via mail in 2021. 

Erin Hawley, who represented the doctors suing the agency, argued the FDA “failed to consider or explain … its wholesale removal of safeguards” on the pill.

Read moreThe long and winding history of the war on abortion drugs

But the FDA has long argued its decision to drop in-person appointments to get mifepristone, among other requirements, came after 20 years of monitoring its safety. In that period the agency reviewed dozens of studies in thousands of women in which serious problems — including hospitalization — occurred less than 0.3% of the time.

Hawley pointed out that FDA’s own prescribing label mentions that 2.9% to 4.6% of women taking the drug go to the emergency room. But Solicitor General Elizabeth Prelogar pointed to studies showing that half of women who go to the emergency room don’t get any treatment at all.

“Many women might go because they’re experiencing heavy bleeding, which mimics a miscarriage, and they might just need to know whether or not they’re having a complication, ” Prelogar said.

Because of the highly technical nature of reviewing drug data and research, courts have long deferred to FDA’s scientific judgements on safety and effectiveness.

Justice Ketanji Brown Jackson pressed Hawley on the legal basis for second-guessing the agency’s regulators.

“So what deference do we owe them at all with respect to their assessment that these studies establish what it is that they say they do about safety and efficacy?”

Hawley ran into questions as she argued that a nationwide rule curtailing mifepristone use was needed. 

She was repeatedly interrupted by Justice Neil Gorsuch, who voiced objections to such sweeping injunctions.

The 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 federal government action,” said Gorsuch.

Normally when a court issues an injunction about a government policy it only applies to the individuals or groups in the case. But in recent years a growing number of justices on lower courts have issued “universal injunctions,” blocking federal regulations nationwide.

Gorsuch noted that there have been roughly 60 such rulings in the last four years.

Chief Justice John Roberts also seemed skeptical that a ruling reversing the FDA’s scientific judgments was necessary.

“Why can’t the court specify that this relief runs to precisely the parties before the court as opposed to looking to the agency in general and saying, ‘Agency, you can’t do this anywhere?’”

The Biden administration argued that the plaintiffs — a group called the Alliance for Hippocratic Medicine — didn’t have the right to challenge the FDA’s actions on mifepristone. 

The doctors who brought the suit argued that they might have to treat emergency room patients who experience serious complications after taking the drug. 

But Prelogar told the court that the doctors don’t have to prescribe mifepristone and they can abstain from treating patients who have taken the pill if they oppose abortion.

“They don’t prescribe mifepristone,” Prelogar said. “They don’t take mifepristone, obviously. The FDA is not requiring them to do or refrain from doing anything. They aren’t required to treat women who take mifepristone.”

Justice Samuel Alito, however, repeatedly pressed the government on who did have the right to sue over FDA’s decisions. 

“Is there anybody who can sue and get a judicial ruling on whether what FDA did was lawful?” Alito, who wrote the 2022 ruling that overturned Roe v. Wade, asked. 

Several justices pressed Hawley to provide real-life examples of doctors who oppose abortion being forced to treat patients who had suffered from abortion pill complications.

They also took issue with how many hypothetical problems Hawley raised in her argument against the FDA’s loosening of abortion pill restrictions.

“I don’t want to hypothesize,” Jackson said to Hawley, asking her to provide an example of a doctor who was unable to object to providing an abortion.

At one point, Justice Amy Coney Barrett also questioned an example one of the doctors provided of a colleague who had to perform a “dilation and curettage” procedure on a patient with complications. Barrett pointed out that those procedures are not just performed in cases of abortions but for miscarriages as well. 

Some of the justices also pointed out that doctors are already protected from performing abortions when they don’t want to by voicing conscience objection. 

Justice Brett Kavanaugh raised that point early on: “Under federal law, no doctors can be forced against their consciences to perform or assist in an abortion, correct?”

For more than a century, the FDA has had sole authority over assessing the safety of drugs and approving their sale in the U.S.

The agency first approved mifepristone in 2000 following a four-year review, including detailed safety studies submitted by the French manufacturer. In 2016, FDA loosened restrictions on the drug to allow it to be prescribed up to 10 weeks of pregnancy and allowed nurses and other medical professionals to prescribe it. In 2021, the agency said the drug could be sent through the mail, doing away with a longstanding requirement that women to pick the drug up in person.

Jessica Ellsworth, an attorney representing the New York-based Danco Laboratories, which makes mifepristone, asked the justices to consider how the case could upend the FDA’s decades-old system for regulating drugs, vaccines and other life-saving medicines.

“I think this court should think hard about the mischief it would invite if it allowed agencies to start taking action based on statutory responsibilities that Congress has assigned to other agencies,” she said.

U.S. District Judge Matthew Kacsmaryk’s decision last year marked the first time a court had issued a decision to revoke approval of a drug FDA had deemed safe. An open letter signed by nearly 300 biotech and pharmaceutical company leaders last year slammed the ruling as undermining Congress’ delegated authority to the FDA to approve and regulate drugs. If justices can unilaterally overturn drug approvals, they said “any medicine is at risk.”


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Contraception in Europe, why is it only free in some EU countries?

Contraception is known to prevent unwanted pregnancies and, in the case of condoms, protect against sexually transmitted infections (STIs). When it comes to contraceptives, male and female condoms are the most effective barriers to STIs including HIV, according to the WHO and the European Centre for Disease Prevention and Control. 

So, on International Condom Day, 2023, why is there still such disparity in access to contraception around Europe? 

The European Parliament encourages safeguarding access to contraception. As recently as 2021, a parliamentary report on sexual and reproductive health stressed that all member states are encouraged to provide universal access to contraceptive methods and address any barriers.

Yet government policies across the European Union continue to vary.

Financial inequality between western and eastern member states is believed to be part of the problem. Neil Datta, Executive Director of the European Parliamentary Forum for Sexual and Reproductive Rights told Euronews: “In east European countries, up until the early 1990s, contraception was not very well known, it was not very accessible so, we are still dealing with the legacy of that even today.”


The AIDS Healthcare Foundation has designated 13 February as International Condom Day. It says the event was created to encourage safer sexual practices on an international scale and promote the use of contraception to prevent unintended pregnancies and STIs.

The EU mirrors this message and has also called on public authorities to ensure students in schools are given a rounded education on sexual health. It calls for professional counselling to be provided on a range of contraceptive methods in line with standards set by the World Health Organization.

But, these are recommendations and the 27 Member States are not obliged to act on them.

“Governments have not been very proactive in thinking about their policies in relation to contraception,” said Datta. He went on to explain that some countries are also against wider contraception policies, based on the idea that encouraging the use of contraception will have a negative impact on fertility rates.

‘Best accessibility’

The Contraception Policy Atlas, designed by the European Parliamentary Forum for Sexual and Reproductive Rights, breaks down contraception policies in 46 countries across Europe. Its findings suggest that France has the best access to contraception, counselling and the highest availability of online information services out of all EU Member States. Accessibility was rated at 93.2%. 

France announced its pharmacies would provide free condoms to people aged 18-25 from January 2023 after health authorities discovered that the number of STIs in France increased by 30% in both 2020 and 2021. A programme providing free STI testing and the emergency contraceptive pill has also been rolled out.

In Ireland, free condoms are available to people of all ages through sexual health clinics and some third-level colleges. In addition, from 1 September 2023, free contraception will be given to 16-year-old girls and to women between the ages of 26 and 30 as part of the national budget. The national health service has also announced it will spend €500,000 on condoms and lubricants as part of an ongoing campaign against “crisis pregnancies” and STIs – amounting to 1.5 million free condoms every year.

Germany also announced that it wants to follow France’s lead and finance condoms through its national health insurance. For now, though, contraception comes at a cost through the national health scheme, although special provisions cover birth control pills and emergency contraception for adolescents up to the age of 22.

‘Lowest accessibility’

The Contraception Policy Atlas puts Poland at the opposite end of the scale, with a rating of just 33.5% in terms of public access to contraception. Emergency contraceptive pills need to be prescribed by a doctor and are not available over the counter in pharmacies.

Meanwhile, in Hungary, there is no publicly-funded website for contraception services and a prescription is needed for all contraceptive supplies except condoms and emergency contraception.

Role of politics and religion

“Policies on contraception influence people’s behaviours in accessing contraception. One aspect is whether it is covered by the respective national health system. If it is not covered by the national health systems then it creates financial barriers for individuals who want to use it” said Datta.

Religion is also an important factor, “most religions, Christian religions specifically, do discourage the use of contraception, particularly in the world of Catholicism. 

“So where those religions are very strong, the narratives out there which do discourage the use of contraceptives and religious actors can have influence over public policies” he added.

The right kind of sex education

Yet, in Europe as a whole, the unintended pregnancy rate has declined by 53% over the past 30 years, according to the Guttmacher Institute.

Some experts argue that one of the factors behind declining unintended pregnancy rates is the promotion of sex education in schools, which is widely encouraged by the European Parliament and the World Health Organization. 

“Comprehensive sexuality education teaches young people both about contraception and about respect and consent within relationships including sexual relationships. This has a very positive knock-on effect on people understanding how to prevent unintended pregnancies and how to protect their own health by being able to empower themselves to avoid sexually transmitted infections” said Datta.

Sex education remains a topical issue. In some countries, such as Ireland and France, it is a compulsory part of school education, but in Italy, for example, sex ed is optional.

Where available, education is often delivered through a variety of school subjects as part of a cross-curricular programme. Various aspects are taught through biology, home economics and social sciences.

Yet sex education does not necessarily provide students with information on contraception methods.

Natalie Picken, an analyst for the RAND Corporation, a non-profit specialising in improving policy and decision-making through research, told Euronews that education on contraception is only included in the sex education curriculum in some EU countries.

“It is likely that the content, nature and extent of these programmes varied considerably between regions, schools, and classes” she added.

Picken’s research found that most EU members have limited teacher training opportunities in sex education, despite its benefits. 

“There is strong evidence that sexuality education can lead to reduced risk-taking, delayed initiation of sexual intercourse, and more use of contraception and condoms and generally improves young people’s knowledge and attitudes around sexual health,” she said.

How can EU countries bridge the gap?

Implementing better access to contraception can be costly but there are ways authorities can get up to speed. 

“One easy quick fix that is accessible to any government would be to provide government supported information for example via a website which provides authentic, authoritative information… that is within the capacity of each government no matter how strapped it may be”, concluded Datta.

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