Supreme Court Appears Poised to Uphold Access to Key Abortion Medication

The US Supreme Court appears likely to maintain access to mifepristone, a medication used in nearly two-thirds of all abortions in the country last year. During 90 minutes of arguments, a consensus emerged that abortion opponents challenging the FDA's approval of the drug and subsequent actions to ease access lack the legal right or standing to sue. A decision in this direction would leave current rules in place, allowing patients to receive the drug through mail without an in-person doctor visit and take the medication for abortions up to 10 weeks of pregnancy.

The court's return to abortion issues occurs amid a political and regulatory landscape reshaped by its 2022 decision, which led many Republican-led states to ban or severely restrict abortion. Solicitor General Elizabeth Prelogar argued that the court should dismiss the case and clarify that anti-abortion doctors and organizations do not have standing. Justices Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh, who were part of the majority to overturn Roe v. Wade, posed skeptical questions about standing to the lawyer representing abortion opponents.

Abortion opponents are asking the justices to ratify a ruling from a conservative federal appeals court that would limit access to mifepristone, one of two drugs used in medication abortions. The outcome of the current case could affect races for Congress and the White House. Another abortion case is already on the docket for next month, concerning whether a federal law on emergency treatment at hospitals must include abortions, even in states that have otherwise banned them.

A ruling for abortion opponents could halt mifepristone delivery through mail and at large pharmacy chains and end telehealth visits where the drug can be prescribed. The Biden administration and drug manufacturers warn that such an outcome could also undermine the FDA's drug approval process by inviting judges to second-guess the agency's scientific judgments. They argue that mifepristone is among the safest drugs ever approved by the FDA.

Justice Ketanji Brown Jackson, a Biden appointee who joined the court just after the last abortion case, signaled her agreement with some arguments when she asked Danco Laboratories' lawyer about concerns regarding judges parsing medical and scientific studies. Abortion opponents argue that the FDA's decisions in 2016 and 2021 to relax restrictions on obtaining the drug were unreasonable and jeopardized women's health nationwide.

The mifepristone case began five months after the Supreme Court overturned Roe v. Wade. Abortion opponents initially won a sweeping ruling from US District Judge Matthew Kacsmaryk, a Trump nominee in Texas, which would have revoked the drug's approval entirely. The 5th US Circuit Court of Appeals left intact the FDA's initial approval of mifepristone but reversed changes regulators made in 2016 and 2021 that eased some conditions for administering the drug.

The Supreme Court put the appeals court's modified ruling on hold before agreeing to hear the case. Justices Samuel Alito and Clarence Thomas asked some questions about sending mifepristone through mail during arguments focused on technical legal issues. They referred to the Comstock Act, a rarely used criminal law revived by anti-abortion advocates seeking to block mifepristone delivery through US mail.

Mifepristone is one of two drugs, along with misoprostol, used in medication abortions. Their numbers have been rising for years. Over 6 million people have used mifepristone since 2000. If mifepristone becomes unavailable or too difficult to obtain, health care providers may switch to using only misoprostol, which is somewhat less effective in ending pregnancies.