The future of access to the abortion pill may raise a fundamental legal question: Who has the right to sue?
Dr. Christina Francis, one of the anti-abortion doctors involved in a Supreme Court case seeking to restrict the drug’s supply, leads an anti-abortion group that sued the U.S. Food and Drug Administration to restrict the sale of mifepristone. . She said she suffered mental harm while treating patients who were taking the medication.
What’s unclear is whether this reaches the threshold necessary to file a lawsuit in federal court—that plaintiffs would suffer concrete harm if mifepristone remained widely used. Lawyers called the request “valid.”
Dr. Francis, president of the American Association of Pro-Life Obstetricians and Gynecologists, said in an interview Friday that the FDA “forced me to participate in an action that I morally object to.”
Those statements were echoed by other anti-abortion doctors involved in the lawsuit, including an Indiana doctor and state lawmakers. Call for tougher penalties For abortion providers and a California doctor who pioneered help Abortion Pill Reversal Method This is not yet supported by scientific evidence.
None of the anti-abortion doctors are required to prescribe or regularly treat abortion patients, but they say they may encounter such patients in emergency rooms, and even treatment side effects can cause them difficulty. They said it would subject them to “enormous stress and pressure”, forcing them to choose between their conscience and professional obligations.
The federal government and many legal experts dispute those claims. The government cited years of scientific evidence that serious complications from mifepristone are rare, and experts cast doubt on doctors’ claims of mental harm.
“This looks like a general objection to public policy,” said Elizabeth Sepper, a law professor at the University of Texas and an expert on conscience protection. “A lot of what our government does goes against the conscience of any of us. We might think, I don’t want to be part of a country that enforces the death penalty. But our legal system doesn’t allow us to go to the court and say, I’m going to stop this public execution.” policy because it violates my conscience.”
A plaintiff’s assertion of standing may also conflict with Supreme Court precedent.
A 2009 court decision Summers v. Earth Island Institutesaying that even if there is a statistical likelihood of harm, it is not enough to hold water.
If a judge finds that the long-running lawsuit is invalid, the case could be dismissed entirely.
The dispute has unfolded in briefs filed with the Supreme Court.
Deputy Attorney General Elizabeth B. Prelogar, defending the government, said the challengers presented scant evidence that was far from sufficient to show real harm.
“Although mifepristone has been on the market for decades,” she wrote, the plaintiffs “cannot find even a single instance in which one of its members was forced to provide such care.”
She added that “‘stress and stress’ are inherent in a doctor’s job” and argued that “merely being in the presence of someone in need of urgent care” does not constitute harm to a doctor charged with treating patients.
Danco Laboratories, manufacturer of mifepristone, warns that if the court rules that the plaintiff has standingwhich could lead to a flood of lawsuits from any doctor who doesn’t like a drug or regulation, “destabilizing the industry and harming patients.”
Lawyers for Alliance Defending Freedom, a conservative Christian legal advocacy group that represents doctors, noted that the appeals court said anti-abortion doctors and organizations have standing.
At issue in Tuesday’s case are changes the FDA has made since 2016 to expand the use of mifepristone. These decisions allow patients to obtain their mifepristone prescription via telemedicine and receive it in the mail.
Attorneys for the plaintiffs said the decisions increase the risk that anti-abortion doctors “will see more women suffer emergency complications from abortion drugs.” Such complications include “retention of fetal parts, massive bleeding, severe infection,” which can cause “mental, emotional and spiritual distress” to doctors, they said.
Data cited by the federal government shows there has been no increase in complications since the 2016 decision, and less than 1 per cent of cases have serious complications.
Dr. Francis said in a written statement in the lawsuit that she cared for a woman who experienced complications from taking abortion pills provided by a website that shipped from India. When asked why this was relevant to the FDA’s decision, since the FDA does not approve or regulate the drugs in question, Dr. Francis said she believed the FDA’s decision to allow U.S. telemedicine providers to mail FDA-approved drugs played a role in some way. The government also “allowed” women to transport drugs from India. “
Dr. Francis said in an interview that over the past two years she has cared for four or five patients who had bleeding, infections or needed surgery to complete abortions.
The federal government, states and hospitals have enacted conscience protection policies that allow doctors and other health workers to choose not to provide care they object to—essentially creating a path for anti-abortion doctors to avoid the harm they claim in lawsuits. However, there is no evidence in the statement, lawsuit or the plaintiffs’ legal brief that any doctor invoked conscience protections.
Another anti-abortion doctor who submitted the statement, Dr. Ingrid Schop, said in a written response to The New York Times that she did not invoke such protections. “The group I practiced with for 25 years had a no-abortion policy, so it wasn’t an issue,” Dr. Scope said. In her current position, where she works several shifts a month covering labor, delivery and the emergency room, if “a patient develops abortion-related complications, I take care of her,” she said.
Dr. Scope is the author of two recently retracted studies that showed the abortion pill was unsafe, both of which were cited by the plaintiffs in the lawsuit.
“In non-emergency situations, I often have an excuse not to care for patients,” Dr. Francis said in an interview. In emergencies, she said, she felt “forced to go against my conscience.”
Although anti-abortion doctors say mifepristone is unsafe for women, both Dr. Francis and Dr. Scope said they have no objection to using the drug to treat women who have had miscarriages. In the same treatment regimen as the medical abortion regimen, the abortion is treated with mifepristone followed by misoprostol.
Dr. Francis said that in this case, she only prescribed misoprostol because she hadn’t seen enough research to know whether using mifepristone first was more beneficial. “I’m not morally opposed to it,” she said.
Adam Liptak and Jody Kanter Contributed reporting. Julie Tate Contributed research.
