Topline
Supreme Court justices suggested Tuesday they’re unlikely to roll back federal approvals of abortion drug mifepristone, with even conservative justices expressing skepticism that the anti-abortion rights advocates who brought a case challenging the drug’s legality have standing to sue as the court heard its most consequential abortion case since it overturned Roe v. Wade in 2022.
Key Facts
The court heard two consolidated cases on Tuesday, brought by the Biden administration and mifepristone manufacturer Danco Laboratories, which challenge an appeals court ruling that rolled back the federal approval for mifepristone.
Mifepristone is one of two drugs taken during a medication abortion—along with misoprostol—and was first approved by the Food and Drug Administration in 2000, with the government expanding access to the drug through subsequent approvals in 2016 and 2021.
Anti-abortion rights groups backed by the Alliance Defending Freedom are seeking to roll back access to mifepristone and restore the drug’s availability to how it was before 2016, meaning it could only be prescribed and taken in-person at a physician’s office, and would only be available through the first seven weeks of pregnancy, rather than 10.
Justices suggested that the parties challenging mifepristone—namely doctors who object to being required to perform or assist with abortions in hospitals—don’t have standing to bring the case, with Justice Ketanji Brown Jackson noting that restricting mifepristone seems “overbroad” compared to the injuries the doctors are claiming, and conservative Justices Brett Kavanaugh and Amy Coney Barrett raising that federal laws already allow physicians to refuse to provide abortions on moral and religious grounds.
Justice Neil Gorsuch also signaled the plaintiffs were going too far in trying to restrict mifepristone nationwide, suggesting the case is part of a “rash” of cases nationwide that have sought to turn “small lawsuits” into a “nationwide legislative assembly.”
While Justice Clarence Thomas expressed some support for restricting mifepristone, bringing up the national Comstock Act that restricts mailing drugs for abortions, even he questioned the anti-abortion advocates’ argument that the case posed a burden because it required the group to spend resources on bringing litigation, asking why that wouldn’t apply to anyone “who is aggressive … about bringing lawsuits” and remarking the argument “seems easy to manufacture.”
What To Watch For
Justices will rule in the case within the next several months, sometime before the court’s term wraps up in late June. Mifepristone remains broadly available—with the 2016 and 2021 approvals in place—while the court deliberates on the case, as justices paused the appeals court ruling that restricted the drug in April 2023.
What We Don’t Know
What will happen if justices roll back mifepristone’s approval. Abortion pills were used for a majority of abortions in the U.S. even before Roe was overturned and have become a primary way for patients to access abortion in the wake of state-level bans on the procedure—particularly via telehealth and having pills sent through the mail. Abortion organization Aid Access mails 6,000 doses of medication into states where abortion is banned per month, founder Rebecca Gomperts told The Washington Post, and the pills are attributed as a key reason for why abortion rates have actually gone up since Roe was overturned. Nearly 28,000 doses of medication abortion were also provided outside of the traditional medical system for “self-managed” abortions in the six months after Roe was overturned, according to a study published Monday in JAMA, as the pills have been a way for people with bans to obtain abortions, even unlawfully. Abortion providers are expected to still be able to provide misoprostol-only regimens via telehealth if the court restricts mifepristone, as misoprostol can be used on its own to terminate a pregnancy, but that carries more side effects than when the drug is used in conjunction with mifepristone. Limiting mifepristone through only the first seven weeks of pregnancy is also expected to have a notable effect, as 56% of abortions in 2021 took place after the first seven weeks of pregnancy, the Post reported using data from the Kaiser Family Foundation.
Surprising Fact
Medication abortion that’s prescribed using telehealth is equally as safe and effective as when pills are prescribed and taken in a clinical setting, according to a study published in February in Nature. Studies have consistently found medication abortion using mifepristone is broadly safe and effective at terminating a pregnancy.
Tangent
Pharmaceutical companies have warned the court about how a ruling against mifepristone could impact other medications, as it could open the floodgates to new challenges seeking to restrict other controversial drugs—such as birth control pills, HIV medication, Covid-19 vaccines or hormone treatments. “Permitting courts to second-guess FDA’s congressionally delegated science-based safety judgments could destabilize the pharmaceutical and biotechnology industry, incentivize litigation by third parties, and discourage innovation in drug development, all to the ultimate detriment of patients,” the Pharmaceutical Research and Manufacturers of America argued in a court brief. Alliance Defending Freedom denied to NBC News that it had any intention to challenge other drug approvals, calling the pharmaceutical industry’s arguments a “red herring.”
Key Background
The mifepristone dispute is the biggest legal case over abortion since the Supreme Court overturned Roe v. Wade in June 2022, ruling in Dobbs v. Jackson Women’s Health Organization that there is no longer a federal right to obtain an abortion. That ruling led to a cascade of state-level bans on the procedure, with more than a dozen states now banning abortion and more enacting restrictions that have been blocked in court. Anti-abortion advocates have turned their focus to medication abortion as abortion pills have become a key way to maintain abortion access in the wake of the court’s ruling, with state restrictions on abortion pills popping up in addition to the litigation. The lawsuit taking aim at mifepristone’s approval was first brought in November 2022, and Trump-appointed U.S. District Judge Matthew Kacsmaryk initially struck down mifepristone’s approval entirely before a federal appeals court rolled back his ruling and only outlawed more recent approvals broadening access to the drug. Both the Biden administration and Danco then asked the Supreme Court to take up the case, which it agreed to do in December.
