March 26, 2024: Supreme Court hears oral arguments in abortion pill cases

Several justices asked questions beyond the law during oral arguments, seeking detailed answers about medical procedures and practices related to reproductive care and mifepristone, one of two drugs used in medication abortion.

Justice Ketanji Brown Jackson sought more information on how often doctors might need to perform emergency procedures for a patient who had taken drugs for a medication abortion, even if the physicians object to abortion.

“It’s my understanding that sometimes, the completion, it doesn’t involve surgical intervention. Do you have a sense of how often?” the liberal justice asked.

Jackson also asked Erin Hawley, an attorney representing the abortion pill’s challengers, how close a doctor might need to be to a procedure they object to in order to be “complicit.”

“Like I — I work in the emergency room and this is going on? I’m handing them a water bottle? I’m — like, what do you mean complicit in the process?” Jackson asked.

At another point, conservative Justice Amy Coney Barrett asked about a dilation and curettage, or D&C, the procedure to remove tissue from the uterus, and noted it did not necessarily mean that a doctor was removing a living embryo, since a D&C can happen after a miscarriage. She also asked specific medical questions about the need for tissue to be removed if an abortion wasn’t complete after a medication.

Barrett also pressed whether the elimination of in-person visits to provide mifepristone — a step the FDA ended in 2023 — would “lead to mistakes in gestational aging, which could increase the need for a D&C or the amount of bleeding.”

Medication abortion is available only through the first 10 weeks of pregnancy. Under current regulations, while a person does not need to see a provider in person to receive drugs for a medication abortion, providers still must be available to assess gestational age and whether someone may have an ectopic pregnancy. Most medication abortions occur without an ultrasound.