Court schedules abortion pill case for March argument session


The Supreme Court will hear oral argument on Mar. 26 in the battle over access to a drug used in medication abortions, which account for over half of all abortions performed in the United States. The justices on Monday morning released the calendar for their March argument sitting, which begins on Mar. 18 and ends on Mar. 27.

The argument in Food and Drug Administration v. Alliance for Hippocratic Medicine and Danco Laboratories v. Alliance for Hippocratic Medicine, which will be heard together, headlines the March calendar. It is the first time since the court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization, overturning the constitutional right to an abortion, that the justices will weigh in on the issue of abortion.

The drug at the center of the case, mifepristone, is half of a two-drug protocol used to end pregnancies in their early stages. A group of doctors and medical groups opposed to abortion challenged the FDA’s approval of the drug last year, arguing that the protocol is “unsafe.”

In August, the U.S. Court of Appeals for the 5th Circuit turned down the challengers’ request to revoke the FDA’s initial approval of the drug in 2000, ruling that the lawsuit came too late, but it rolled back later actions by the FDA that increased access to the drug, such as allowing it to be used later in pregnancy. The drug, however, remains widely available as a result of a temporary order issued earlier in 2023 by the Supreme Court. 

The FDA and Danco, which manufactures mifepristone, came to the Supreme Court last year, asking the justices to review the 5th Circuit’s decision, which they agreed in December to do.

The March calendar will also feature another high-profile case, involving the ability of government officials to communicate with social media companies about their content moderation policies. In Murthy v. Missouri, a federal district judge agreed with a group of individual plaintiffs – including epidemiologists and physicians who contend that their social media posts criticizing COVID-19 policies were censored – and two states that the federal government had “apparently engaged in a massive effort to suppress disfavored conservative speech.” U.S. District Judge Terry Doughty issued an order that limited communications between the White House and several government agencies about virtually all content.

After the 5th Circuit largely upheld Doughty’s order, the Biden administration came to the Supreme Court, which put Doughty’s order on hold and agreed to weigh in.

Here is the full list of cases scheduled for oral argument in March, along with a brief summary of the question presented in each:

Murthy v. Missouri (Mar. 18): Whether the federal government’s conduct transformed the content moderation decisions by private social media companies into government action and therefore violated the First Amendment, and whether the challengers have a legal right to bring their lawsuit.

National Rifle Association v. Vullo (Mar. 18): Whether the head of New York’s Department of Financial Services violated the National Rifle Association’s freedom of speech by urging banks and insurance companies that worked with the NRA to cut their ties with the group.

Diaz v. United States (Mar. 19): Whether prosecutors in  a drug-trafficking case can call a government witness to provide expert testimony to rebut a defendant’s contention that she did not know that she was carrying drugs.

Truck Insurance Exchange v. Kaiser Gypsum Co. (Mar. 19): Whether an insurer with responsibility for a bankruptcy claim is a “party in interest” that can object to a plan of reorganization under Chapter 11 of the Bankruptcy Code.

Gonzalez v. Trevino (Mar. 20): What kinds of evidence must a plaintiff alleging that she was arrested in retaliation for speech protected by the First Amendment show to qualify for the exception outlined in Nieves v. Bartlett, which holds that although plaintiffs must generally show that police did not have probable cause to arrest them, they can also show that they were arrested when others who had not been engaged in protected speech would not have been.

Texas v. New Mexico and Colorado (Mar. 20): Latest chapter in a long-running water dispute over the apportionment of the waters of the Rio Grande, and in particular efforts by Texas and New Mexico to settle the dispute over the objection of the federal government.

Becerra v. San Carlos Apache Tribe & Becerra v. Northern Arapaho Tribe (Mar. 25): Whether Native American tribes that manage their own health care programs are entitled to receive funds from the Indian Health Service to cover the costs associated with services covered by insurance.

Harrow v. Secretary of Defense (Mar. 25): Whether the 60-day deadline for a federal employee to petition the U.S. Court of Appeals for the Federal Circuit to review a final decision of the Merit Systems Protection Board is jurisdictional.

FDA v. Alliance for Hippocratic Medicine & Danco v. Alliance for Hippocratic Medicine (Mar. 26): Whether the challengers have a right to bring a lawsuit to challenge the FDA’s 2016 and 2021 actions increasing access to mifepristone; whether those actions were unreasoned; and whether the district court properly granted temporary relief.

Erlinger v. United States (Mar. 27): For purposes of the Armed Career Criminal Act, which imposes an enhanced sentence for unlawful possession of a firearm if the defendant has three convictions “committed on occasions different from one another,” should a jury or a judge decide whether the crimes occurred on different occasions?

Connelly v. United States (Mar. 27): Whether the proceeds of a life-insurance policy taken out by a closely held corporation on a shareholder to facilitate the redemption of the shareholder’s stock should be considered a corporate asset when calculating the value of the shareholder’s shares for purposes of the federal estate tax.

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