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SCOTUS upholds Mifepristone access. What's next for the anti-abortion movement?


In recent years, groups that oppose abortion have achieved a series of legal victories at the state and federal levels. Today, though, the Supreme Court preserved access to mifepristone. That's a drug used in medication abortions. The case had sought to restrict access to mifepristone, and it hinged on the FDA's regulatory power. In a unanimous decision, the court found the doctors who sued did not have the right to do so because they couldn't prove they had been harmed. The Alliance Defending Freedom argued the case. It is one of the organizations behind the Dobbs decision that led to overturning Roe v. Wade. Kristen Waggoner is the CEO and general counsel of the ADF. She was in the court for oral arguments back in March. She's with us now. Kristen Waggoner, welcome.


KELLY: Your top-line reaction to the Supreme Court decision today.

WAGGONER: We're certainly disappointed that the Supreme Court didn't address the question of whether the FDA had recklessly removed the commonsense safeguards on abortion drugs, but we're also excited, encouraged by the fact that the court issued such broad statements and clear statements that the right of conscience is protected under federal law for all healthcare providers. And previously, the federal government had taken the opposite position until we reached the Supreme Court with this case.

KELLY: Just to follow on the basis on which the court rejected this case, this was on standing, saying the doctors didn't have the right to sue. Does that mean you see daylight to revisit the issue going forward?

WAGGONER: Absolutely. I think that the issue will continue to be at the forefront because the FDA's own label says that roughly 1 in 25 women who take the chemical abortion drugs will end up in an emergency room. So the FDA does need to be held accountable, and we're grateful that the litigation will continue, with three states standing ready to continue this litigation.

KELLY: This is - just to insert there, you're talking about the study of Medicaid patients that found the much higher rate of ER visits.

WAGGONER: It's the data that was cited by the FDA in justifying the removal of the in-person visits. And the FDA's own label actually says that up to 7% of women who take these abortion drugs will actually require surgery as a result.

KELLY: OK. I will note our science correspondents have been tracking this, and they report on a number of detailed studies, evidence from nearly 25 years on the market that concludes mifepristone is very safe. One more question just that I hope strikes at the heart of this - the doctors that you represent have federal conscience protections. You nodded to this. Basically, it means they don't have to prescribe mifepristone if they don't want to. They can if they want to. Why do organizations like yours need to do more to ban or limit the use of mifepristone? Why not let doctors make up their own minds?

WAGGONER: I'm glad you brought that up because what we've seen in this litigation is an about-face explanation by the Department of Justice, the federal government. When this case began, the federal government took the position that there were no conscience rights, that the Biden administration, through its agency, could force health care providers to perform abortions and to violate their conscience. And they changed their position when the case finally got to the U.S. Supreme Court, and essentially, that's because the lawsuit backed the government into a corner and forced the government to abide by the constitution in this area.

KELLY: Again, now, as law currently stands, doctors can make up their own minds in their medical judgment whether to prescribe this drug or not. Why not let them do that? Why not let them make up their minds?

WAGGONER: Well, I think you're talking about a broader issue of abortion provision more broadly. And when we're talking about conscience rights, we are saying that whether a doctor has a conscientious objection, whether they have an ethical objection, they should be able to practice medicine consistent with those objections. In terms of the FDA's approval of chemical abortion drugs, it's not about whether those drugs are safe or doctors can make up their own minds. It's whether the FDA did the appropriate studies and recklessly removed commonsense safeguards like an in-person doctor visit, where - again, the FDA's own label says that 1 in 25 women will visit an emergency room from taking these drugs.

KELLY: Just to note that the fact that this is telemedicine doesn't necessarily mean that people aren't getting follow-up care, right? Providers can still follow up even if they're prescribing pills that are arriving via mail.

WAGGONER: First of all, in the FDA's actions, they've removed many of the common-sense safeguards that exist. They went from three visits to one visit with a doctor and to no visits at all. And what we know is that a patient doesn't necessarily have to have follow-up care with their physician, and it's not happening. We can look at the implications of that from the FDA's own admissions that up to 7% of women are requiring surgeries and an increased rate of 300% in hospitalizations when studies were done as to what the consequences would be from the FDA's actions.

KELLY: Kristen Waggoner is the CEO for the Alliance Defending Freedom. Thank you very much for your time.

WAGGONER: Thank you. I appreciate the opportunity.

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Mary Louise Kelly is a co-host of All Things Considered, NPR's award-winning afternoon newsmagazine.
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