“Courts are just not in a position to parse through [the studies] and second guess [the FDA’s conclusion],” Ellsworth said.
Erin Hawley, a lawyer for Alliance Defending Freedom (ADF), which is representing AHM, later countered the arguments from the FDA and Danco, saying that in-person visits would increase the likelihood of the woman receiving an ultrasound before being prescribed the drugs, rather than “to be able to order these online with a couple of screening questions.”
Does AHM have legal standing to sue?
When Hawley was questioned about the lawsuit, the justices focused heavily on whether AHM had any legal standing to sue the FDA.
Hawley argued that her clients, some of whom are emergency room doctors, have standing to sue because they are forced to care for women suffering from complications with the abortion pill, even if the doctors object to abortion.
“[They are] forced to manage abortion drugs’ harm,” she said.
Although federal law allows doctors to refrain from providing services that violate the doctor’s conscience, Hawley claimed that objections in these situations are not practical because of the “emergency nature of these procedures.”
Hawley said the lack of in-person care leads to inadequate follow-ups for the women who use the drug, which leads them to seek care in emergency rooms.
“[The FDA’s deregulations] turn emergency rooms into that follow-up visit,” Hawley said.
Justice Ketanji Brown Jackson, who was appointed by President Joe Biden, said that federal law already protects their right to object and questioned why the court would need to impose “an order preventing anyone from having access to these drugs at all” to remedy these concerns.
During the conversation, Trump-appointed Justice Neil Gorsuch similarly expressed concern about a district court’s ability to restrict access to a drug nationwide based on the legal objections from a handful of doctors.
(Story continues below)
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Both Alito and Thomas pressed the FDA’s lawyer on who would be allowed to sue the FDA in this situation if not AHM. Prelogar said it would be hard to identify any person or group who would have the legal standing to file a lawsuit.
The Supreme Court is expected to decide the case by June.
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