Supreme Court Justice Ketanji Brown Jackson appeared to snipe at her colleague Justice Samuel Alito‘s line of questioning on Tuesday during consequential oral arguments over the fate of access to the common abortion drug, mifepristone.
The justices heard oral arguments over whether a group of doctors who oppose the use of the abortion drug can challenge the U.S. Food and Drug Administration‘s rules that allow remote access to the pill by mail or online order. The FDA argues there is no evidence to suggest the drug is harmful, while physicians challenging the rule say they’ve been forced to deal with patients exhibiting adverse side effects from mifepristone, which is manufactured by Danco Laboratories.
Lawyers for Danco and the Justice Department said Tuesday that the physician plaintiffs lacked the standing to sue over the drug’s regulations, arguing none of its members take or prescribe mifepristone.
Justice Samuel Alito, the author of the 2022 high court decision that allowed states to create laws restricting abortion procedures, asked DOJ Solicitor General Elizabeth Prelogar if there would be any plaintiff who could challenge the FDA’s regulations of the drug in court.
Prelogar said that no court had ever overruled the FDA’s judgment about a drug, and Alito later asked the same line of questioning to Danco attorney Jessica Ellsworth.
“During the questioning of the solicitor general, the statement was made that no court has ever previously second-guessed the FDA’s judgment about access to a drug,” Alito asked, adding, “Do you think the FDA is infallible?”
“No, your honor. We don’t think federal and we don’t think that question is really teed up in any way in this case,” Ellsworth added, contending that the FDA has pulled certain drugs from the market after they were previously approved.
Jackson, an appointee of President Joe Biden who only joined the bench shortly after Alito’s 2022 decision, reversed Alito’s line of questioning when she spoke to Ellsworth.
“You were asked if the agency is infallible, and I guess I’m wondering about the flip side, which is do you think that courts have specialized scientific knowledge with respect to pharmaceuticals?” Jackson asked. “Do you have any concerns about judges parsing medical and scientific studies?”
“Yes, Your Honor. I think we have significant concerns about that,” Ellsworth responded.
Ahead of the consequential arguments over the case on Tuesday, hundreds of drug companies argued in an amicus brief to the high court that allowing the physicians’ challenge to the FDA rule on mifepristone could cause damage to the existing approval and regulatory system and could spell danger for the entirety of the pharmaceutical industry.
Jim Campbell, chief legal counsel to the conservative legal group Alliance Defending Freedom, which represents the anti-abortion doctors, told the Washington Examiner previously that a ruling in his clients’ favor would not upend the industry.
“The FDA itself, throughout this entire case, has not pointed to a single specific drug that will be adversely affected by a ruling for us,” Campbell said.
CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER
While the Supreme Court appeared skeptical about ruling in a way that would result in nationwide rollbacks to mifepristone’s approval, three Republican-appointed members, including Chief Justice John Roberts and Justices Neil Gorsuch and Amy Coney Barrett, appeared open to a potentially narrow ruling in the case despite raising questioning about standing, or the ability for the physicians to bring the suit.
Gorsuch was the Republican-appointed justice who sounded the most disinterested in a broad ruling, saying the case is a “prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule,” and he took aim at a “rash of universal injunctions” that have been put in place by lower courts in recent time.