WASHINGTON – Supreme Court rejection of summons abortion pill mifepristone may depend on how the justices evaluate “conscientious objections” raised by doctors who do not want to treat patients who suffer complications after taking the drug.
The court said during Tuesday’s argument that the plaintiffs — seven named doctors and related anti-abortion groups — lacked legal standing to bring the lawsuit in part because they lacked conscientious objection arguments.
Several justices questioned the nature of the harm doctors suffered by the Food and Drug Administration’s decisions to lift restrictions on mifepristone, including those allowing mail-order availability.
Under established precedent, when people file a lawsuit, they must show that they have been injured and that their injuries can be compensated by the person or entity they are suing.
But as the justices noted, under federal law, doctors can now raise a conscientious objection when asked to treat a patient in the context of an abortion.
“So I just want to be clear, the position of the federal government is that even if a physician has a conscientious objection … is it your position that such physicians should invoke the conscientious protection of federal law?” conservative Justice Amy Coney Barrett asked Elizabeth Prelogar, the attorney general representing the FDA.
“Yes, of course,” replied Prelogar. Conscience protection “protects a physician who is unwilling to provide care by violating these protections,” he said.
Fellow conservative Justice Brett Kavanaugh and liberal Justice Elena Kagan asked similar questions.
If the Court had concluded that doctors could bring conscientious objections anyway, it would not need to decide the larger question of whether the FDA acted lawfully in lifting the restrictions.
“The survey showed significant consensus that the primary harm to plaintiffs is the assumption that they can be forced to complete an abortion against their conscience,” said Greer Donley, an abortion law expert at the University of Pittsburgh’s Center for Bioethics and Health Law.
“The appropriate remedy is not to change the entire regulatory scheme, but to provide plaintiffs with good faith protection, which of course already exists,” he said.
Only two of the seven doctors, Ingrid Skop and Christina Francis, specifically raised concerns of conscience, Prelogar argued in court.
Frances is an obstetrician-gynecologist practicing in Fort Wayne, Indiana.
He said statement in a claim that he and the American Association of Pro-Life Obstetricians and Gynecologists, a group to which he belongs, oppose having to intervene when a patient needs medical attention after an incomplete abortion.
“The objections are both ethical and medical because they arise from the goal of medicine, which is to treat, not selectively kill,” he said.
Skop, a San Antonio-based physician, said in a statement that the FDA’s decision “harms my rights of conscience because it could force me to surgically terminate an incomplete elective chemical abortion.”
Erin Hawley, an attorney representing the plaintiffs, acknowledged in an exchange with Kagan that Scope and Francis are plaintiffs who can establish their position.
Hawley said Francis was once asked to help with a life-threatening situation in which a woman was experiencing complications after taking mifepristone.
But Hawley, questioned by Kagan, noted that Francis did not raise a conscientious objection at the time.
“Usually … the way people who have conscientious objections do it is to file those objections,” Kagan said.
Responding to a similar question from another liberal justice, Justice Ketanji Brown Jackson, Hawley said that sometimes doctors are unable to object.
“These are emergencies,” he said. Doctors “won’t know until she goes into the operating room whether it’s the abortion drug or not,” he said.
Barrett also zeroed in on the testimony of Francis and Scope, drawing a distinction between doctors performing abortions and doctors treating a patient suffering from side effects from taking mifepristone.
Both doctors specifically objected to performing abortions, he said, but after a careful reading of the testimony, there was no indication that either of them “actually participated in an abortion to end the life of an embryo or fetus.”