Amy Coney Barrett’s Surprising Remarks in Abortion Pill Case

U.S. Supreme Court Associate Justice Amy Coney Barrett made remarks during oral arguments in a major abortion pill case on Tuesday that may surprise and concern anti-abortion advocates.

The nine justices were hearing arguments in FDA vs. Alliance for Hippocratic Medicine. The federal government is seeking to overturn a decision by a district judge in Texas ordering the Food and Drug Administration (FDA) to withdraw its approval of mifepristone, a pill used in more than 60 percent of U.S. abortions.

The nation’s highest court has a 6-3 conservative majority, and Barrett was appointed to the Court in 2020 by then-President Donald Trump, but her comments on Tuesday suggested she was skeptical about the plaintiffs’ standing to bring the lawsuit.

Oral arguments focused on the question of standing; whether plaintiffs bringing the case have suffered harm that can be addressed by the courts. If the Supreme Court found that the plaintiffs in this case do not have standing, the lawsuit could not proceed.

Barrett, a conservative who voted with the majority in the landmark abortion ruling Dobbs vs. Jackson Women’s Health Organization, appeared to question whether doctors involved in the case had standing.

Justice Barrett focused on medical issues as part of her questioning when she discussed one of the plaintiffs in the case, Christina Francis. She is an OB/GYN who is also the chief executive of the American Association of Pro-Life Obstetricians and Gynecologists.

Barrett referred to a procedure known as dilation and curettage (or D&C) and drew a distinction between when the procedure is performed after an abortion and after a miscarriage.

“The fact that she [Francis] performed a D&C does not necessarily mean that there was a living embryo or fetus,” Barrett said.

The doctors in the case say they have the right to sue based on their theory that they might be required to treat a woman in an emergency room due to complications from mifepristone that would require an abortion procedure. They add this would force some doctors to participate in these procedures against their conscience.

U.S. Solicitor General Elizabeth Prelogar said on Tuesday that the doctors in question do not have standing.

Former federal prosecutor Joyce White Vance wrote in a Substack article on Tuesday that “the carefully written affidavits from some of the doctors fell short of establishing that they had ever been called upon to provide care for a women that required them to do what Justice Barrett characterized as terminating embryonic or fetal life.”

“When you’ve lost Justice Barrett on this issue, you’re in trouble,” Vance added.

Dan Urman, a law professor at Northeastern University, told Newsweek on Tuesday that he believed the Court would rule 7-2, with conservative Justices Samuel Alito and Clarence Thomas dissenting. He said he believed Trump’s three appointees would join the court’s three liberal justices and Chief Justice John Roberts in ruling against the anti-abortion group that sued the FDA.

In April 2023, Texas District Judge Matthew Kacsmaryk, a conservative appointed by former President Trump, ruled in favor of a lawsuit by Alliance for Hippocratic Medicine. He ordered the FDA to withdraw its approval of the medication, prompting concerns that it could have been banned nationwide.

However, a federal appeals court later narrowed that ruling, determining the medication could be dispensed only in the first seven weeks of gestation, instead of 10, and not by mail.