Gorsuch Grills Conservative Lawyer Arguing for Abortion Pill Restriction: ‘Counsel, Let Me Interrupt There’

The U.S. Supreme Court on Tuesday heard oral arguments in a case in which the plaintiffs are seeking to drastically limit the availability of the abortion pill mifepristone.

The case was brought by a group of doctors who are not required to prescribe the medication but nonetheless argue they have suffered harm because they treat patients who have experienced side effects from it. They argue that caring for such patients causes “enormous stress and pressure.” A district court judge ruled in their favor last year, stating that the Food and Drug Administration erred in approving the drug two decades ago. However, the Supreme Court stayed that opinion pending appeal.

During arguments, several justices appeared skeptical about the doctors’ standing, which plaintiffs must have for the court to rule on the merits of the case. To have standing, they must show that they experienced a particular harm.

There was some discussion of the merits of the case, however. Justice Ketanji Brown Jackson asked a lawyer for the plaintiffs why – even if the clients have standing – they should be entitled to seek a nationwide virtual ban on mifepristone.

“[A]ssuming we have a world in which they can actually lodge the objections that you say that they have,” Jackson said, “my question is, isn’t that enough to remedy their issue? Do we have to also entertain your argument that no one else in the world can have this drug or no one else in America should have this drug in order to protect your clients?”

“So, again, your honor, it’s not possible given the emergency nature of these situations,” answered the lawyer, Erin Hawley (who happens to be the wife of Sen. Josh Hawley). Hawley was then interrupted by Justice Neil Gorsuch, who initiated the following exchange:

GORSUCH: Counsel, let me interrupt there. I’m sorry. I think Justice Jackson is saying, let’s spot you all that, ok, with respect to your clients. Normally, in Article III, traditional equitable remedies, we issue and say over and over again, provide a remedy sufficient to address the plaintiffs’ asserted injuries and go no further. We have before us a handful of individuals who’ve asserted a conscience objection. Normally, we would allow equitable relief to address them.

Recently, I think what Justice Jackson’s alluding to, we have had one might call it a rash of universal injunctions or vacatures. And this case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule or any other federal government action. Thoughts?

HAWLEY: Yes, Your Honor. Again, I have to say that I think it’s impracticable to raise a conscience objection. But even spotting that, I think that the district court remedy here was practically appropriate under Section 705. Section 705 grants the reviewing courts the authority to issue all necessary and appropriate relief. And as the government acknowledged in oral argument when Corner Post, when the parties before the court are non-regulated parties, the only avenue in which they can possibly get relief, and of course that’s the sine qua non of equitable relief is that the parties before the court get it. And that’s for, in this case, a state issue or in another case as a vacature. And that’s because, without that sort of relief, the very parties before the court won’t get it.

Chief Justice John Roberts then interjected to ask a question.

“Why can’t the court specify that this relief runs to precisely the parties before the court, as opposed to looking to the agency in general and saying, ‘Agency, you can’t do this anywhere’?” he said.

“So I think, Your Honor, that might be impracticable,” Hawley replied. “If we’re thinking again about the emergency room situation, [my client] would, again, have to know when she’s in the emergency room whether it’s a miscarriage, an ectopic pregnancy, or elective abortion. This is what she does day in and day out.”

Gorsuch resumed his questioning by asking Hawley why the court should restrict the availability of mifepristone nationwide.

“I just wanna give you one more shot at that,” he said.

“Sure, Your Honor,” replied Hawley, who cited a Supreme Court decision from 1892 and added that “equity requires that the parties before the court get relief.”

Listen above via MSNBC.

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