Female judges get specific about women’s health

By | March 27, 2024

Justice Amy Coney Barrett asked about dating a pregnancy based on ‘the woman’s story of when her last period was’.

Judge Elena Kagan wondered whether a medical procedure qualifies as abortion if there is no fetal “living tissue.”

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And justice Ketanji Brown Jackson shared her insight that pregnancy tissue left in the body after a medication abortion does not necessarily require “surgical intervention.”

Four of the nine justices who heard the Supreme Court’s long-awaited oral arguments on Tuesday on a challenge to a major abortion drug are women, the most ever to sit on the Supreme Court for an abortion case. All three attorneys who argued the case on both sides are also women, a relative rarity in the Supreme Court’s male-dominated bar.

The result seemed to be a remarkably candid, specific and non-euphemistic exchange on women’s health, highlighting the Supreme Court’s changing gender balance.

Judges Kagan and Sonia Sotomayor felt strongly about it when the conservative majority turned around Roe v. Wade in June 2022, while Barrett was in the majority. But Jackson was not yet in court at the time of that ruling.

The abortion pill case — which could limit access to mifepristone, a drug used in 63 percent of the more than 1 million abortions performed annually in the United States — focuses on somewhat technical medical issues.

Anti-abortion advocates claim the pills are highly dangerous, especially if taken without an ultrasound or in-person medical visit — false claims based largely on studies that have since been retracted by the journal that published them. Leading medical associations emphasize that the drug is extremely safe, with serious side effects occurring in less than 0.5 percent of cases.

Before the arguments, experts wondered to what extent the judges – legal, not medical, experts – would buy into the health and safety-related arguments made by both sides in the case. Some expected the justices to steer clear of the merits of the case and discuss only whether plaintiffs could sue over the pills.

On Tuesday, the justices were “really interested in the heart of the matter,” said Mary Ziegler, a law professor at the University of California at Davis who specializes in abortion.

“They tried to take this seriously and treat abortion pills as a medical problem in this context,” Ziegler said. “The type of business this is invites that. It’s not about the Constitution.”

While most of Tuesday’s discussion focused on the issues at hand, the justices — especially the women — embraced opportunities to discuss the medical reality of the pills in their questions, occasionally even offering their own comments.

In a discussion about whether any of the physician plaintiffs were involved in the case, Barrett distinguished between a procedure to empty the uterus known as dilation and curettage (or D&C), when it performed after a miscarriage and when it is performed after an abortion.

“The fact that she performed a D&C does not necessarily mean that there was a live embryo or fetus,” Barrett said, referring to Christina Francis, a gynecologist who is the CEO of the American Association of Pro-Life Obstetricians and Gynecologists . and a plaintiff in the case. “Because you can get a D&C after a miscarriage, you know.”

Soon after, Kagan and Jackson joined to support Barrett — echoing her concerns about standing. Sometimes the three women even finished each other’s questions.

“Can you clarify the broader damage to conscience of the narrow-minded damage to conscience?” Jackson asked Erin Hawley, the attorney for the Alliance Defending Freedom, the anti-abortion group that brought the case. “Because I understood the damage to conscience that Judge Barrett does, but you’re suggesting there’s a broader one.”

Barrett also had an in-depth discussion about whether an ultrasound should be necessary for a medication abortion. She then questioned Justice Department attorney Attorney General Elizabeth B. Prelogar about ectopic pregnancies, a very dangerous condition in which a pregnancy implants outside the uterus. She wondered how it was possible “to detect an ectopic pregnancy without an ultrasound.”

Prelogar provided a very specific response that emphasized the attorney’s understanding of the medical facts at issue.

“There is a series of screening questions that are commonly deployed,” she said.

“You can ask things like, ‘Do you have unilateral pelvic pain?’ ‘Did you get pregnant while having an IUD during or after a tubal ligation?’” she continued, explaining the ins and outs of the problem.

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Video: Supreme Court Justice Amy Coney Barrett asked Solicitor General Elizabeth Prelogar on March 26 to clarify alleged “side effects” and other possible complications arising from mifepristone use. (c) 2024, The Washington Post

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Video: Supreme Court Justice Amy Coney Barrett noted a series of medical complications that could warrant surgical procedures such as a D&C on March 26 while questioning attorney Erin Hawley of Alliance for Hippocratic Medicine. (c) 2024, The Washington Post

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