SCOTUS Upholds Access to Abortion Pill Mifepristone

Updated June 13, 2024

• The Supreme Court has decided to uphold access to the abortion pill, a drug that the FDA has approved for over two decades. The justices unanimously rejected the argument from a group of anti-abortion advocates, known as the Alliance for Hippocratic Medicine, that questioned the FDA's decision. The verdict came down to the plaintiffs' standing to question the FDA's expertise. 
• The case was centered around changes made by the FDA in 2016 and 2021 to widen the pill's accessibility by mail and telemedicine. 
• The ruling reaffirms the FDA's role as a regulator for medications of all kinds. 

What they're saying

• President and chief executive Jodi Hicks of Planned Parenthood Affiliates of California said:

"The court issued the only reasonable decision in this case — for now. But we can't let our guard down."

• SBA Pro-Life America, one of the nation's most active anti-abortion groups, said the decision is "deeply disappointing." President Kristan Hawkins of Students for Life of America, a pro-life advocacy organization, said:

"We'll be back."

• President Nancy Northup of the Center for Reproductive Rights said in a statement:

"The anti-abortion movement sees how critical abortion pills are in this post-Roe world, and they are hell bent on cutting off access. In the end, this ruling is not a 'win' for abortion — it just maintains the status quo, which is a dire public health crisis in which 14 states have criminalized abortion."

Updated March 27, 2024, 12:30 p.m. EST

• On Tuesday, March 26, the Supreme Court heard arguments about the mifepristone case, challenging the Food and Drug Administration's approval of the medication that is used in nearly two-thirds of abortions in the U.S. 
• The justices appeared skeptical of the arguments to limit access to the pill, which the FDA has approved for over two decades. At the case's core is whether the agency had the authority to expand access to the drug in 2016 and 2021 by allowing doctors to prescribe it through telemedicine and send the pill by mail. 
• Several justices questioned whether the plaintiffs have standing, bringing skepticism to their entitlement to sue the FDA. The justices also challenged the plaintiffs' request to apply nationwide restrictions to the drug, which would be the first time a court had second-guessed the FDA's expert judgment about drug safety. Justice Neil Gorsuch said:

"This case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an F.D.A. rule or any other federal government action."

What's the story?

• The U.S. Supreme Court has agreed to hear a case that could make mifepristone, the popular abortion pill, less accessible. 
• In April, Texas-based U.S. District Judge Matthew Kacsmaryk imposed a nationwide ban on mifepristone. The Supreme Court put a hold on the decision until the justices could hear the case this term, keeping the abortion pill widely available for the time being. 
• This case could not only affect access to mifepristone, but also the FDA's authority to regulate medications. 

The big picture

• The Alliance for Hippocratic Medicine, an association of anti-abortion doctors and organizations, filed a federal lawsuit last year arguing that the FDA had overstepped its power in approving mifepristone.
• Kacsmaryk revoked the FDA's clearance of mifepristone, declaring that the administration had improperly approved the drug 23 years ago. He claimed the approval process was inadequately expedited, leading to an unsafe drug regimen entering the market.
• The Biden administration and the manufacturer of mifepristone had requested the high court to intervene and halt Kacsmaryk's ruling.
• Since Roe v. Wade was overturned, over a dozen U.S. states have either banned or heavily restricted abortion. Other states have passed laws and approved ballot measures to safeguard abortion rights. Anti-abortion activists are now focusing on medication abortion, which can be received through the mail and taken at home.
• Mifepristone is the first of two pills that make up the most popular method for terminating pregnancies. It's responsible for more than half of all abortions in the U.S.
• While the Supreme Court hears the case, the medication will remain available. A decision will likely be released by the summer of 2024.

What they're saying

• The Alliance for Hippocratic Medicine argues that the "FDA always envisioned that emergency room doctors…would be a crucial component of the mifepristone regimen." The group says doctors would suffer if they had to treat patients who have taken the medication. The Biden administration said the alliance failed to show "any evidence of injury from the availability" of the drug. 
• The government asserts that the drug has been "safe and effective" since 2000. The administration said the FDA has "maintained that scientific judgment across five presidential administrations, while updating the drug's approved conditions of use based on additional evidence and experience…"
• Danco, the maker of mifepristone, said anti-abortion doctors have no authority to bring this case to the court, as they "do not prescribe or use the drug," and their only "real disagreement with the FDA is that they oppose all forms of abortion."

Should the Supreme Court block the abortion pill nationwide?

-Jamie Epstein