comes along with emotional harm. one doctor talks about these being some of the most stressful work she's had to deal with, your honor. >> i understand that. i am talking about the injury of having to divert resources to litigate this? >> with respect to the organizational standing. >> the alliance? >> the best evidence is the fda's reply brief. the government resorts to the underlying briefs in the case to say there was a contract and economic harm, but this court case specifically said the fact that the nature of the harm was, quote, noneconomic, did not prevent the court from finding an injury, and they looked for two things, when there was an impairment of the mission or expenditure of resources, and both things are satisfied here. if you look at how the

organizations have been harmed, they have been forced to divert resources, and explaining the dangers of the harm from abortion drugs. one of the primary reasons that's required is in 2016, the fda took away the requirement that abortion providers report adverse events aside from -- >> that would be anybody who is aggressive or vigilant about bringing lawsuits, just simply by resources to advocate their position in court, you say now, causes an injury, and that seems easy to manufacture. >> i don't think that's true in this case, justice thomas. i realize the lower court talks about where they prelude to cases, and those cases don't

count, and in this case they note they have performed studies and analyzed studies and several of those are in the record and they are not short, and they comb through medicare data and other data so they get a true nature of the adverse events and neither are prelude to litigation and would not have occurred but for the fda's conduct in the case. >> you talk about the noneconomic harm, and that would indicate they did not tend to rent the apartment, so there was no loss or gain from renting the apartment, and i think what sg is pointing to is that they provided services on their own. it was not just the member services they were providing upon, but they were providing services to the people to help them rent apartments, and that's a very important distinction

from here, separate from the individual defendant's claims on wasted resources, and the organizations are not losing anything. their job is to do exactly what you are talking about, and they are doing it. they are investigating certain problems, but that's not an injury that is redressable by this -- by vacating this rule. >> so a couple of things, your honor. this court's opinion in havens did not rely on the economic nature at all, and i point to the line in havens where the court says the respondents' interest, and with respect to our own injury, it's addressable. for example, if the regulations are put back in place, the

protections, whereby individual abortion providers need to provide information about adverse events, that would provide our respondent organizations with more accurate information about the harms from abortion drugs. >> can i ask you about the remedy in the way i was talking with the sg. it makes sense for the individual doctors to seek an exemption, but as i understand it they already have that. what they are asking for here is that in order to prevent them from possibly ever having to do these kinds of procedures, everybody else should be prevented from getting access to this medication. why isn't that plainly overbroad scope of the remedy of the case? >> well, i don't think our doctors necessarily are able to object for two reasons.

one is the emergency nature of the procedures. as the fda acknowledges many women do go to the emergency room, and if we look at what that might look like, take dr. francis -- >> i am sorry, i don't want to hypothesize. tell me in her declaration where she talks about not being able to object or pose a conscientious objection? >> these are emergency situations. respondent doctors don't know if it's a miss carriage or ep topic pregnancy. if you look at the district court brief, we heard the church

amendment applies and they told the district court the very opposite. >> let me ask you this. if we were to find that there are conscientious objections, should we end this case on that basis? >> these are emergency situations, and they can't waste precious moments scrubbing in -- >> no, no, i am saying assuming we have a world in which they can actually lodge the objections that you say they have, my question is, isn't that enough to remedy their issue? do we have to also entertain your argument that nobody else in the world can have the drug or nobody else in america should have this drug in order to protect your clients? >> again, your honor, it's not possible given the emergency

nature of the situations -- >> counsel, let me interrupt there. i'm sorry. i think justice jackson is saying that let's spot you on all that with respect to your clients. normally in article 3, traditional equitable remedies, we say over and over provide a remedy sufficient to address the asserted injuries and go no further. we have before us a handful of individuals that asserted a conscious objection, and normally we would allow equitable relief to address them. recently, i think what justice jackson is eluding to, we have had one might call a rash of universal injunctions or vacationers, and it's what we call a small lawsuit into a

nationwide legislative assembly on any fda rule or government action. thoughts? >> yes, your honor, i think it's impractical tauable to raise a objection. section 705 grants the courts to issue relief, and when the parties before the court are nonregulated parties, the only avenue in which they can possibly get relief, and that's for, in this case, a state issue or in another case as a vacateture. >> why can't the court specific this relief runs to precisely the parties before the court, as

opposed to looking to the -- to the agency in general and saying agency, you can't do this anywhere? >> so i think, your honor, if we are thinking about the emergency room situation, would dr. francis have to know if it's an miscarriage or abortion, this is what she does day in and day out, and it seems these would run, two particular plaintiffs would be missing and the fda regulations would be in place, and permit things like mail-order abortions. if we look at the merits of what the fda did in 2021, the fda relied on two things. they relied first on the -- >> i can understand your impulse there, and i went back and looked and there are zero universal injunctions issued

during franklin roosevelt's time in office, and pretty consequential ones, and over the last year or so the number is something like 60, and maybe more than that. it's a relatively new thing, and you are asking us to extend and pursue this remedial course, and this court never adopted that itself, and lower courts run with this and i want to give you one more shot at that? >> the fda incapsulates inequitable equities, and in you have nonregulated parties, those parties could be farmers or ranchers, and their only

availability for relief is if the court does something to the fda order or regulation at issue, otherwise the parties are out of luck and that's inconsistent with equity. >> may i ask you about your basic theory of standing, and just as a clarification question as much as it is anything, when you did your 1, 2, 3 in your opening statement, and it sounded like along the lines of we represent a lot of doctors and there are a lot of women out there taking the drug, and many of them come face-to-face with

these women that have the adverse event? >> the fda's own acknowledgment, and in regulating mifepristone, the hospitals and doctors are critical to the safe use of the drug. >> i think it's your theory, you are saying, even the fda admits there will be adverse events and people are going to show up in emergency rooms and people are going to come face-to-face with one of our doctors who objects to some aspect of the treatment. that's the theory, yes? >> well, we certainly think all of that is true, but we don't think it's a problem with problem listic standing as is the case with summers for three reasons. first, summers identified unnamed -- >> does your theory really depend on your having at least

one person? i take summers to be saying these probability theories sound nice and have nothing to do with our article 3 requirements. you need a person, you need a person to be able to come in and meet the court's regular standing requirements. so you agree with that, yes? >> that's correct, your honor. yes. >> who is your person, and i know you have seven, but if you had to pick one and say go read that declaration and that declaration will tell you why we're entitled to be up here, who is the person? >> i have to pick two, your honor, but dr. francis and dr. scott. >> what about those two doctors gives you the kind of imminent injury let alone the traceability that we typically required? >> to speak to dr. francis at the beginning, there's been confusing about the precise nature of the conscience harm,

and she talks about her and other members who object not only to taking the life of an unborn child but also to completing that process. the declaration in 142 and 143 -- >> i read that declaration pretty carefully. what actual emergency treatment has she participated in that she objects to and that she has stated an objection to? >> the prior page, your honor, talks about a dnc that she was required to perform to the life threatening emergency. >> she, herself, did that, and did she have a chance to object? >> no, your honor, they would

have to scrub out and -- >> well, the way people with conscious objections do this, they make those objections known, and it may be harder or easier in a particular context, but most hospitals have mechanisms in place and routines in place to make sure that doctors who are allowed to do this, you know, in advance, and are allowed to do it at the moment. they say so. when i looked at dr. francis' and dr. scott's, there's nothing you have that suggests -- there are other requirements that you need, but at the very least to be able to say that this happened to them in the past, i don't think you have it for either one of those doctors. >> i think we do, your honor, given the emergency nature. it's simply impracticalable to have an objection lodged to

understand what is going on in the operating room, and i point to where the government says neither the church nor any of the other sponsors of the federal conscience protections intended to apply to emergency situations, and it's hard to ask the doctors to go up to the top floor and litigate this when the government is telling them they don't have that protection. >> is it true our standing decisions have not relied on probablisic -- if a question about citizenship was included on the questionnaire, a certain percentage, an unknown percentage of residents would then not fill out the census at all, and therefore it was probable that there was some risks that new york state would risk losing a representative in the house of representatives or would risk losing money under

some federal program, and you put together this chain of probabilities and that was sufficient to establish standing. >> absolutely. we agree with that, justice alito. in particular, you can look at the seed farms case that involved nonregulated parties and this court looked at the distance that bees might fly in order to pollinate seed farms. here the fda admits, and this is at 533 women will go to the emergency room, and it acknowledges up to 7% of women will need surgical intervention. when the fda talks about there being no increase in adverse events from the gestational age, the only way they can say that is by ignoring surgical interventions, and that's because ja207 --

>> what do we do with the fact that these two people that rely on, francis and scott, that indiana and texas have aabolished abortions and abolished them by pills or otherwise, and we can get into what other people are doing illegally, and supplying that against the law, but what does that do -- there are thousands of hospitals in the country, 50 states, and i don't know how many territories, but thousands and thousands of places where pregnant women go that may be suffering from a miscarriage or otherwise, to know or even emergency how one doctor is going to ever actually see a patient that it's -- that he or she is going to be forced to

intervene on their behalf, but then add to it that this is illegal in these states? >> i think the best answer, justice sotomayor. we have three doctors that treated harms from abortion drugs at least a dozen times, and we have two examples when women went out of state, and if you go out of state there's a highly likelihood you will not have a follow-up visit, and they have turned the er rooms into the follow-up visits, and we had that where a woman went to new mexico and returned to texas, and a woman went to illinois and returned to indiana. 1 in 5 abortions take place out of state, and the border states is where the doctors reside. >> you were talking about dr.

francis, and as i read her allegations -- or as her affidavit reads, she said her partner was performed to perform a dnc when there was a living fetus, and she performed a dnc on a woman that had serious complications, but that did not mean there was a living embryo or fetus, because you have a dnc after a miscarriage, and these affidavits do read more like the conscious objection is strictly acting in the process of the abortion to end the life of a fetus, and i don't read either of them to say they participated in that. do you want to address that? >> yes, i think dr. francis' can be read on pages 7 and 8, and

that's how the fifth circuit understood that conscious harms. with respect to even the more narrow conscience harm as to whether a doctor may need to end a life, we think there's a substantial risk of that occurring. if you look at the number of increases from 7 to 10 weeks, some pregnancies will require a dnc, and 55% of those dncs occur in the emergency room. there's a substantial number of women suffering abortion drug harm. 650,000 women took the drug in -- >> not all those dncs would involve a pregnancy that would be viable or an embryo that is living, and there's pregnancy

tissue remaining. >> the 3.1 is ongoing pregnancies. and 542 it says up -- >> how many members of your organization? you have a broad number of doctors in your organizations and dentists and some doctors that retired, and how many doctors in organization are obgyns, and -- >> hundreds, and the plaintiffs are called to the or to treat these sorts of emergencies. >> can you clarify the broader conscience harm from the narrow one, because i understand the conscience harm as justice barrett does, but you suggest

there's a broader one. where is that? >> the district court understands the conscience harm to be either taking the life of an unborn child that would be sometimes required, and dr. francis testifies to a partner required to do that because of -- >> that's what i understood the narrow one to be, right? i am participating in a procedure that is ending the life -- >> yes. >> so what is the broader one? >> the broader one is being complicit in the process that involves taking an unborn life. >> i'm sorry, like, complicit like i am working in the emergency room and this is going on, and i am handing them a water bottle -- >> what harms our doctors, your honor, is being involved in completing the terms of our

declaration an elective abortion, and it's really not that hard to see why that might be a conscience harm -- >> you just said again it's being involved in completing an elective abortion, and i took that to be the conscience objection. i think what justice jackson is asking or what i asked before or what justice barrett is asking, is there any broader conscience objection that appears in the declarations? >> yes, and here it means removing an embryo fetus whether or not they are alive and dr. francis talks about being required -- >> whether or not there's any live tissue? >> yes, your honor. >> where are we looking for that? >> i would point your honor to ja-155, where she talks about completing an abortion, and

pages 142 and 143 describe the harm of being involved in an elective abortion, your honor. the doctors performing a dnc must scrape out a woman's uterus, and other cases have indicated that. >> it's my understanding that sometimes the completion, it doesn't involve surgical intervention. do you have a sense of how often -- we may get all the way down the chain to the doctors there, and the person is having an emergency procedure, and my understanding is with some of the chemical abortion scenarios, the completion occurs by prescribing additional medication. do you have a sense of how many times the completion is done by

that route and can be completed by another physician opposed to your clients? >> well, the second dose of the drug has been part of the regimen back to 2016. the best numbers we have from the fda are still consistent with that, and 3.1 pregnancies at ten weeks will be ongoing. i would encourage you to work at ja-405 through 407. >> i guess i am just trying to get at -- we are still working on how many circumstances or how often it would be that your clients actually have to complete the procedure in the way that you are describing? >> dr. scott talks about doing this at least a dozen times, either a dnc or suction to remove the fetus, and 3.1% is at

ten weeks. this only has gone up. the fda told this court that it was necessary to preserve women's health and precisely so these incidents occur less frequently. >> thank you. >> i am sure you heard the answers of the solicitor general and the counsel for danco with respect to the comstock act. i would like for you to comment on their answers? >> sure, justice thomas. we don't think there's any case in this court that empowered the fda to ignore other federal law. with respect to the comstock act is relevant here, the act says drugs should not be mailed through the mail or through common carriers, and we think

the plain text of that, your honor, is pretty clear. >> when did you first raise the comstock act? >> i believe the comstock act was first raised at the district court, your honor, and we think exhaustion does not apply for two reasons. first, it would be plainly futile, and this is a whole other kettle of fish, but section 706, it's required in two instances, either by statute or when the agency rule has stayed litigation, and the lower courts have taken conflicting opinions, and we think the better reading of section 704 is there's no exhaustion required unless a rule stays the judicial review. >> may i ask about your view of

traceability? on one understanding, and i want you to tell me if you agree with this, and even beyond proving whatever injury you are trying to prove, that you have to show that that injury is traceable to the 2016 and 2021 fda actions that you are challenging, and, of course, that means showing that these incidents that you are talking about in the emergency room are caused by what every incremental increase in risk there is as a result of 2016 and 2021 actions. my first question is do you agree with that statement of what you need to show? if you do, how do you satisfy that? why do you satisfy that? >> so we believe under the case law that we need to show the 2016 action and 2021 action increased the risk of harm -- >> i guess what i am saying you have to link whatever injury

your members have to that increased risk, do you agree with that? >> we do. we think we can do that w traceability -- when you look at the 2021 action, we think traceability is satisfied by fda's own words. it says the ja405, this is the study that says without in-person visits emergency care is likely to increase along with the surgical interventions, and that's what harm the clients. >> there could be dispute as to how big the increase the risk is, and let's take your view that there is some measurable increased risk. how do you connect that risk to particular actions that your

members have -- the particular injuries your members have undergone or imminently will undergo? i mean, it could be, you know, the original risk. >> the declarations are actually quite clear on this. if you look at doctor francis's declaration, she said when the in-person visit was enjoined by the 2020 court, she saw an increased number of harm. in 2020, the in-person visit was necessary to preserve the women's health because the visit was the best opportunity to accurately assess the gestational age. >> justice barrett? >> the initial visit had no

requirement of an ultrasound or an effort to detect a fetal heartbeat, and why would the elimination of the visit necessarily increase the risks? >> i think, your honor, fda's own data shows the risks did go up. if you look at the study, it shows a nearly three-fold increase in emergency room visits when you have the in-person visit and when you removed it. 5.8% with the in-person visit, and 2.1 without. >> is that because doctors were voluntarily saying it would be a good idea to give you an ultrasound or detect a fetal heartbeat or what? >> when they removed that in-person exam, it took away the opportunity to do that. if a woman comes into a doctor's office, she's likely to get an ultrasound to accurately assess

both atopic pregnancies, or the gestational age. >> let me pivot to the organizational standing question. let's just say that i will carve out and put aside the cost of filing a petition or litigation as harms to your organization itself. explain to me what additional costs you might have incurred or how your reverses were diverted? >> well, the declaration is clear that respondent organizations included going through medicaid data and the fares data to the extent it was available -- >> is that it? >> well, before and after those

comprehensive studies, your honor, and -- >> are they to the end of the litigation of the citizen participation or what are they at the end of? >> well, it's separate from the litigation. one thing to note with the citizen petition, that's the only way in which anyone can raise a concern to the fda. these proceedings go beyond denco and fda behind closed doors, and the first time anybody can raise these objections is a citizen petition. >> justice jackson? >> so what deference, if any, do courts owe the opinion of the expert agency concerning the safety and efficacy of drugs? >> under this court's administrative procedure precedence, your honor, in this case we are not asking that the court second guess the agency's determinations at all but look at what the fda said.

in 2021, when the fda took away the in-person visit, there were studies that said j 407 are not adequate -- >> i don't understand how that scope of review is not second guessing the agency? they are looking at studies, and you are saying the court can look at studies, maybe different studies or maybe the same studies and critique their conclusions about them. what deference do we owe them at all with respect to their assessment that these studies establish what it is that they say they do about safety and efficacy? >> i don't think that's an accurate portrayal of the issue here, your honor, and the reason is we are asking this court to look at what fda said. the fda says you have to have adequate tests and results --

>> didn't the lower courts rely on studies that since have been found discredited and removed. they were obviously looking at not just what the fda was looking at in order to make their assessment, so are you asking us to just look at the fda and not anything else? >> so yes, that claim is not even before this court, but with respect to the two claims that are before the court, the 2016 and the 2021, we think the fda's own statements here are arbitrary. even though we say they are interrelated, it would be arbitrary here as well, your honor. >> on association standing, mr. chief justice, you asked where do you cross the line to get to

an impending injury. one thing the court looked at is whether that harm materialized in the past and how often, and it doesn't guarantee there will be an injury, but it's a source of information. the respondents have pointed to declaration in court demonstrates the past harm has not happened and the reason for that is because it's so speculative and turns on so many links in the chain that would have to occur, and on organizational standing, my friend pointed to the fact they invested time in preparing their citizen position and voluntarily conducted studies and generally refers to diversion of resources.

if that's not every organization in the country has standing to challenge any federal policy they like, and the court should clarify it's that the outer bounds don't qualify. the striking anomaly here of the nationwide nature of the remedy, and justice jackson you suggested a more tailored issue for the parties, and the fda has nothing to do with the remedy, and the only way to provide a remedy was to grant a nationwide relief that is so far removed from fda's regulatory authority that it's ultimately requiring all women everywhere to change the conditionings for the use of the drug. and it's worth stepping back, finally, and thinking about the profound mismatch between that theory of injury and the remedy

that the respondents obtained. they said they fear there could be some emergency room doctor somewhere, some day, that might encounter a woman suffering a complication, and what the court did to guard against that remote risk is enter sweeping wide relief to take away the mifepristone. it harms women who need access to medication abortion under the conditions that fda determined were safe and effective. the court should reverse and remand with instructions to dismiss to end conclusively to end the litigation.

>> thank you, counsel, the case is submitted. you have been listening to live audio from inside the u.s. supreme court where justices have been hearing a case on the abortion pill, mifepristone and so much more. joining us now, alison doerr from outside the court, and kristy greenburg, former federal prosecutor, and katharine kristin, a former manhattan attorney, and all are msnbc legal analysts. it's fascinating to sit there and listen to what is going on in the court. what are your takeaways? >> justice jackson asked do courts have expertise in pharmaceuticals, and that was a

telling question. we were discussing beforehand, if you were winning a bet about which justices would bring up the comstock act, it would be aledo and thomas, and that was my takeaways. >> first of all, just by way of disclosure, i am against this lawsuit to stop women from being able to have mifepristone. my partner just argued the case, and i thought the oral argument went really poorly for the challengers for the drug. sometimes it's hard to tell after an oral argument who is going to win, and anything can happen and i have seen that, but this one did not appear close. the backdrop to the argument is it's the first supreme court argument since they overturned

roe v. wade and the dobbs decision roughly two years ago, and now abortion is up to the individual states and this drug is being used in every state to try and give women some measure of reproductive justice. there were two issues in the case, and one sounds technical, but it's important, and it's the doctrine of legal standing, who can come into the court to challenge a government action. the other was the merits as how the drug and the fda expanded its access, and is that permissible because of the side effects and things like that. i think the outcome was quite clear having listened to the argument now, that the justices, a wide variety of them don't believe there's legal standing to have the case. they basically called erin holly, the lawyer for the religious doctors, they called her theory probablisic.

they said if there are federal conscience protections that work so that these doctors don't have to perform something that they disagree with, then why in the world are you here? why are you able to come in and make a federal case out of this? i didn't hear an answer to that. as a result, you know, i counted every justice, except justice alito as being skeptical about the legal theory of standing. if they don't have legal standing, the case goes away and you don't even get to the question of whether or not the fda acted appropriately, and i think as many as eight justices respect the holly view of the legal standing. seemed like an easy case, and i was surprised the oral argument ended so early in a big abortion case like this, and you would

expect it to go at least two hours if not more, and it seemed like the justices had their minds made up from the minute they walked into the courtroom today. >> talk to us about the issue of standing in the case, and also there was the issue brought up of equitable remedy versus universal injunction, and that as a legal dogma is different. >> yeah, and you saw the solicitor general, the government's top lawyer getting to this at the end of her argument and questions by justice gorsuch. basically what both were saying is that you have a possible speculative harm to doctors where some of their patients may take this drug and those patients may have side effects, and those side effects may lead them to go to the emergency room. these individual doctors that have consciences against the abortion, they might be the

doctors on call and they might have to do something they don't want to do if the federal conscience protections don't work or something like that. gorsuch was saying and the solicitor general was saying that's a speculative chain of causation, and as a result of the chain of causation, you want to be able to come into a federal court and stop the entire nation from getting abscess to the drugs, and that can't be right, and that's where the solicitor general ended her argument, and i think that was a powerful way to end. when you have something that speculative, you can't have a nationwide injunction to stop access to the drug when the fda has dually authorized access in these ways to that drug. >> what were your main takeaways? >> in the recent colorado case on the 14th amendment, you saw a concurrence on the judgment from

the three liberal justices that took issue with those in the majority saying they decided more than they had to, and today i was prepared for an argument that could have gone down similar paths, deciding more than they had to, and i said they will talk about the comstock act, and that has been a project of the right to make this case about the comstock act. it's not about whether or not the fda had authority to allow expanded access to mifepristone, and they are trying to raise the trojan horse that nobody should be allowed to send abortion pills through the mail at all today, and today we saw a court not wanting to decide anything more than they had to, and justice gorsuch was precise and clear in the fact that he doesn't like the idea of nationwide injunctions generally

if you can offer more particularized relief to those injured, and so several or even one of the doctors that erin holly represents had been injured in a way that was recognizable, and the justice said to her, why should that mean that we need to prohibit nationwide access to mifepristone as expanded by the fda when there's a narrower path here. justice roberts also emphasized that. you are seeing a court that has been soundly criticized in recent weeks, with the colorado case and with the dobbs decision, and they have been criticized for going further than they needed to. today they were prepared to go no further than they needed to and stop the case at its very root. if there's no standing, there's no case. if there's standing for a couple people, why should that mandate

an injunction nationwide, when there to be a tailored response to the doctors relief. >> outside the court you have heard people interacting and having a big rally here for people in favor of abortion rights access. there was a rally planned here, and there are hundreds and hundreds of people walking around with signs saying keep your hands off my body and keep access to the pill. we have interviewed to anti-abortion claims, and many say the pill has killed people, and with regard to what is going on here, there's a feeling when i was listening to the oral arguments, the justices were

asking scientific questions, and you heard amy coney barrett say does there have to be an ultrasound, and you were heard them asking about a precise case about the harm it would be causing, and they talked about the profound harm they believe would happen if the fda loses this case, and you heard that last part of what we heard, that's what you are hearing outside here, there are women out here and signs and protesters saying this would be harmful for women across the nation if access to the pill was to be taken away. >> and they are trying to restrict the pill on religious and moral grounds, and the fda does not require the drug to be

prescribed. >> none -- there were seven declarations from various doctors that were submitted in the lawsuit. out of the seven, not one of them can say here's the care that i provided. here's the objection that i clearly stated to providing that care, and here is where i was forced over my objection to provide that care. none of these declarations say that. not one of these doctors is able to say they were forced to perform an abortion against their objection. that's the injury. you have to be able to show under law there's an existing or imminent, you that really ends the inquiry. i think the other thing that was really important, and a number of the justices mentioned this, under federal law if any of the doctors have an objection to performing an abortion, they don't have to perform one. the federal law allows them to have that objection and to step

away. employers cannot force them to do so over their objection. justice jackson talked about that and said the remedy you are asking for -- it does not fit any attenuated injury you may be able to articulate. >> what is it that they could or could not do? >> they could just say basically on this legal standing, these doctors have no standing at all to raise any sort of challenge, because their harm is speculative. then they could throw the entire case out. there would still be other cases that could be brought against mifepristone. justice alito mentioned maybe states can sue as they have tried. maybe there will be other challenges. the challenge by these doctors and their organization could fail. or as lisa suggested, maybe

possible for the supreme court to say, well, maybe these individual seven doctors may have some standing to have some limited relief for themselves, but you couldn't get some sort of nationwide change to mifepristone and the way the fda has authorized it. those are the two ways they could deal with standing. third is, they could say all the doctors have standing and get to the merits of whether the fda was right about mifepristone. i didn't see any justice besides alito buying that. if they did get to the merits, the question would be whether these fda restrictions -- fda enablements in 2016 and later in 2019 were appropriate. there was very little discussion of that today. the briefing by the solicitor general in this was pretty exquisite in explaining this is one of the most studied drugs around. after covid, we had a lot of

data about using the drugs through the mail and not requiring in-person visits. all of that just seemed very powerful, really hard for the u.s. supreme court to second guess. they obviously can do whatever they want. but at some point, they are bound by judicial traditions. i think those overwhelmingly say the decision by the fda on mifepristone was right and can't be touched by a court. i expect we will get a narrow decision that throws this out on legal standing. there will be future battle biz states and others, but those are far down the road. >> the issue of legal standing, injury versus remedy, lisa, is the little attention, i think, that was placed today on the fda and the possibility that it has as an independent entity to rule from a scientific perspective versus a political or religious

one. >> i'm so glad that you raised that, because we have a court here -- let me zoom out for a second. we have a court here that has shown time and again an antipathy to regulations and the regulatory state. in another case that was argued this term, they are prepared to overrule a longstanding doctor -- doctrine. this is a court that hates abortion. so you have a court where the majority doesn't like regulation, doesn't like abortion. and yet, seems prepared to rule in favor of the fda. why? because the fda is perceived as a public good. the danger of this case, which was raised in many briefs, is that if the fda's scientific decision making were questioned by courts and plaintiffs such as these, that would undermine our entire regulatory framework for

the approval of drugs in this country, could stymie research and development and pose barriers for people across the country who are relying on the fda to approve drugs that are safe and effective and necessary to treat medical conditions and not just in this tiny segment of medication abortion. i think the overall belovedness of the fda underlies what we saw today in terms of a lack of concentration on whether or not the fda made the right decision. nobody wanted to go down that path. i think as a general matter, regardless of what this court thinks about agencies, the fda is perceived to be a good in american life. >> how important and just -- just important it is to list rn listen in and how it goes on and it's important aspect of the rule of law and so much more.

i'm so glad we are able to listen in. thank you so much for being with us. that wraps up for me. thank you for the privilege of your time. andrea mitchell picks with more news right now. rsv can severely affect the lungs and lower airways. but i'm protected with arexvy. arexvy is a vaccine used to prevent lower respiratory disease from rsv in people 60 years and older. rsv can be serious for those over 60,

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