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Buried in SCOTUS Abortion Pill Ruling Is a ‘Huge Win for Religious Liberty’: Hawley

June 16, 2024

Late last week, the Supreme Court ruled that a group of doctors and medical professionals don’t have standing to challenge the FDA’s decision to remove virtually every safeguard from the abortion drug mifepristone. What does that mean for the future of these dangerous pills which now account for more than 60% of all abortions? And if doctors who have to deal with the consequences of chemical abortion don’t have the right to challenge these relaxed rules, who does? On Thursday, Family Research Council President Tony Perkins caught up with Alliance Defending Freedom’s senior counsel, Erin Hawley, who argued the case before the justices, to talk about the ongoing battle to protect women from these deadly drugs. 

TONY PERKINS: I know this is disappointing result for all of us who advocate for life and the protection of women. Your reaction to the court decision today?

ERIN HAWLEY: Well, Tony, as you mentioned, it was a very disappointing decision from the Supreme Court. The Supreme Court did not look at the merits. Instead, they decided the case on a legal technicality, saying our doctors did not have standing. But nothing changes. The fact that the FDA’s own label says that roughly one in 25 women who take mifepristone will end up in the emergency room [is disturbing]. These [are] high-risk drugs, [and no one should] allow young women to take these drugs all alone in their dorm rooms without ever having seen a doctor. And the FDA’s decisions were as wrong yesterday as they are today. … But we are encouraged, as you mentioned, that the Supreme Court did not decide the merits. There are three states that have intervened below [the SCOTUS level], and those states will have an opportunity, we hope, to present the merits that the court did not consider.

PERKINS: So, Erin, let me ask you this question. If these medical professionals and doctors who have to deal with the consequences of this abortion drug, if they don’t have standing, who does?

HAWLEY: You know, that’s a really good question. And at oral argument, the United States actually took the position that no one has standing. The United States solicitor general was pressed by Justice [Samuel] Alito, and she said, ‘Our doctors who treat these women on a routine basis, who suffer the complications from taking abortion drugs, don’t have standing.’ She said doctors who prescribe mifepristone don’t have standing. She said a woman who’s injured by mifepristone doesn’t have standing, and she suggested that the states don’t have standing. Thankfully, the Supreme Court did not go that far — for good reason. It would be an astonishing principle of administrative law if a decision that affects about 650,000 women every year involving a high-risk drug is completely unreviewable by the federal courts. Instead, what the federal court did, and I think this is really important for viewers to understand, is they said that the pro-life doctors in this case are protected by federal conscience protections, and that’s why they can’t sue. Now, these federal conscience protections did not exist according to the federal government [in lower court arguments]. The government told the federal courts that these protections did not apply in emergency situations. Then they got to the Supreme Court, and they told the Supreme Court the exact opposite. And that’s why the Supreme Court didn’t find standing where every other court to address the issue had. In fact, the Supreme Court was really clear that doctors do have standing to raise conscience rights. The federal conscience protections in federal law are broad and absolutely protect medical professionals from performing or participating in abortions, even in emergency situations. Of course, those federal conscience protections wouldn’t apply to states, so those states may have an avenue forward.

PERKINS: That’s interesting, because this administration, like the Obama administration, [has been] whittling away at those conscience protections. So with this statement before the Supreme Court, does that somehow bolster now these protections that are out there? Can doctors appeal to this argument before the court as being a validation of those protections?

HAWLEY: Absolutely, Tony. At the oral argument, the solicitor general was crystal clear that these protections apply in emergencies in every setting. And the Supreme Court actually said, and I’m quoting here, ‘The federal law fully protects doctors against being required to provide abortions or other medical treatment against their consciences.’ And as you identified, that’s a huge win for religious liberty and freedom of conscience, because the Biden administration has been continually cutting back on those conscience protections. But because of the lawsuit brought … the government really was forced to concede that those conscience protections exist, and they are robust.

PERKINS: Well, that’s actually a silver lining here in part coming out of this case. So that’s some good news. But I also want to go back to what you said a moment ago, Erin, that this is not the end of the story. There are other states — I believe Missouri is one of the states, Idaho is one of those states — that [have] a separate lawsuit regarding the FDA and the abortion drug. Can you give us an update on what is different about their case and where it stands?

HAWLEY: Absolutely. So those three states, Missouri, Idaho and Kansas, actually intervened in the lawsuit, so they are part of the case back at the district court. And those proceedings will go forward. Presumably, the Department of Justice will file a motion to dismiss the states also on standing grounds. But the states have very different standing arguments than our doctors, and so we’d expect and hope the states will raise those standing arguments — and we hope and expect that the federal courts will get to actually look at the merits of FDA’s decision. And especially, Tony, when you look at the 2021 removal of that last remaining in-person visit [as a requirement of the drug]… the FDA could not say that women would be safe without that in-person visit, and yet, they still removed that safeguard. So we are hoping, again, that the courts do have an opportunity to look into those merits. The Supreme Court didn’t, based on a legal technicality, but as you said, that has the silver lining of ensuring that there are robust conscience protections throughout the country so quickly.

PERKINS: Erin, what would be the difference for the states in terms of standing compared to these doctors that you represented before the Supreme Court?

HAWLEY: Well, the states have a more traditional economic harm — and we don’t represent the states, [so] I will let them speak for themselves. But women who come to the emergency rooms, again, roughly one in 25 do so after taking mifepristone. And some of those women end up in hospitals that receive state funding and that the state is injured by those additional medical expenses due to harm from the abortion drugs. This is really a quintessential economic injury that the Supreme Court has recognized in many cases. So the state will have that economic injury, in addition to their own sovereign injury and injuries, [since] many states have passed laws protecting life. And yet, those abortion drugs are being mailed across state lines. This is a direct injury to state sovereignty. So I’d expect the states to raise these and other standing arguments.

PERKINS: So bottom line, this is far from over.

HAWLEY: Absolutely.