On June 13, pro-choice organizations across the nation celebrated the protection of medical abortion. In a unanimous decision, the Supreme Court upheld the Federal Drug Administration’s relaxed regulation of the abortion pill mifepristone against challenges from the Alliance for Hippocratic Medicine.

Mifepristone, first approved by the FDA in 2000 under the drug Mifeprex, blocks the progesterone hormone to end pregnancy through ten weeks gestation when combined with a secondary drug, misoprostol. 

The use of mifepristone and misoprostol is the most common abortion procedure nationwide, accounting for nearly two-thirds of all abortions.

President and CEO of Planned Parenthood Jennifer Welch publicly praised the Court’s decision to protect access to mifepristone in a press release for Planned Parenthood of Illinois.

“This is a win for PPIL patients and people across the country who can continue to access safe and legal medical abortion,” Welch said.

Over the past two decades, routine reviews of Mifeprex have identified a low risk of drug complications with safety concerns resulting in only 0.4 percent of patients. 

However, anti-abortion advocates sought to challenge FDA regulations that allow patients to receive mifepristone by mail without first consulting with a doctor in-person.

The Alliance for Hippocratic Medicine — a conglomerate of anti-abortion groups such as the American Association of Pro-Life Obstetricians and Gynecologists, the American College of Pediatricians, the Christian Medical and Dental Associations, and several individual physicians — argued that mifepristone complications have harmed the practices of doctors.

CEO and general counsel of Alliance Defending Freedom Kristen Waggoner led the challenge against the FDA, ultimately losing the first major reproductive rights case since Dobbs v. Jackson Women’s Health Organization which overturned constitutionally-protected access to abortion in 2022.

Prior to reaching the Supreme Court, Texas-based U.S. District Judge Matthew Kacsmaryk, a former Christian legal advocate, ruled in favor of Waggoner’s claims that the FDA’s 2000 approval of mifepristone and 2021 decision to broaden access via telehealth harms patients and doctors. 

The FDA appealed to the Fifth Circuit Court of Appeals which upheld the ruling of the lower court in August 2023 before appealing to the Supreme Court.

Justice Brett Kavanaugh authored the opinion of the Court in favor of the FDA, overturning the opinions of the two lower courts. All justices agreed that the Alliance for Hippocratic Medicine lacked adequate standing – defined as the capacity of a party to bring a lawsuit to court – to challenge the FDA.

Kavanaugh wrote that parties do not have standing “simply because others are allowed to engage in certain activities – at least without the plaintiffs demonstrating how they would be injured by the government’s alleged under-regulation of others.”

The decision sparked an outcry from anti-abortion groups concerned about the increased likelihood that abusers and bad actors can acquire the drug without in-person patient-doctor visits.

State Policy Director of Susan B. Anthony Pro-Life America, a group that aims to end all abortion in the United States, Katie Daniel called it a “sad day for all who value women’s health and unborn children’s lives.”

However, pro-choice legal scholars question whether the Court may have inadvertently encouraged future challenges to mifepristone. 

The Court opinion outlined the legal thresholds a plaintiff must reach for the Court to intervene, leaving open the possibility for a different decision on access to mifepristone if anti-abortion groups leverage plaintiffs that meet the requirements outlined by the Court.

Lawrence Gostin, a professor of global health and law at Georgetown University, said that “it would be foolish to declare a victory” for medical abortion when the Court’s decision still leaves room for challenges to arise.

Gostin and other legal scholars are currently contemplating whether a second Trump presidency could legally restrict medical abortion under the Court’s decision. 

The 1873 Comstock Act restricts the mailing of “obscene” materials and is often invoked in anti-abortion arguments to ban mifepristone. The Department of Justice under the Biden administration notes an exemption for mailing mifepristone, but the Trump administration could interpret this differently. 

“This is absolutely a threat,” Gostin said. “It would affect everybody in the entire country, including the bluest of blue states. This would be an effective nationwide ban on the most common method of abortion.”

Mary Zeigler, a professor of law specializing in reproduction, healthcare, and conservatism at the University of California, Davis, shares Gostin’s concerns about the future protection of mifepristone. 

Though Zeigler described the Alliance’s arguments as “extraordinarily bad” by failing to prove standing to challenge the FDA, she remains concerned that doctors could theoretically prove direct injury by being forced to provide abortion care against their moral conscience.

Zeigler points to 303 Creative LLC v. Elenis (2022), also argued by Waggoner, in which the Court upheld the right to refuse service on the basis of religious beliefs due to a broad interpretation of federal conscience protections that prevent individuals from performing mandatory procedures that violate their personal and moral views.

While it is unclear whether similar arguments could apply to doctors, the Court is expected to see future challenges, this time from states. 

Missouri, Idaho and Kansas are currently seeking to challenge mifepristone on the basis that state-run hospitals and insurance programs are directly harmed by paying for treatments to address mifepristone complications. 

Senate Democrats are rushing to protect access to abortion before this happens.

In the days following the Court’s ruling, Senate Majority Leader Chuck Schumer (D-NY) with the co-sponsorship of Senator Patty Murray (D-WA) placed a vote for the Reproductive Freedom for Women Act on the legislative calendar.

“This measure affirms a woman’s fundamental right to choose and calls for enshrining the protections of Roe v. Wade into law, as most Americans say they want,” Schumer said.

The bill states that: “It is the sense of Congress that – (1) protections for access to abortion rights and other reproductive health care after the Dobbs v. Jackson, 597 U.S. 215 (2022) decision on June 24, 2022 should be supported; and (2) the protections enshrined in Roe v. Wade, 410 U.S. 113 (1973) should be restored and built upon, moving towards a future where there is reproductive freedom for all.”

Senate Republicans such as Majority Whip John Thune (R-SD) criticized the act as a “show vote” strategy to boost Democratic polls ahead of the 2024 election.

On July 10, the bill failed in a 49-44 vote. Senator Susan Collins (R-ME) and Senator Lisa Murkowski (R-AK) were the only Republicans to vote in favor of affirming abortion and reproductive healthcare.

Amid legislative obstacles and tightening state restrictions around the country, the Court’s decision to uphold FDA regulations remains a beacon of hope for pro-choice groups.

“This case was always about politics, not medical science, evidence, or patient safety,” Pro-Choice North Carolina wrote in a statement on the ruling. “We know this is not the end of political challenges against medication abortion, but we welcome today’s news from the Court.”

—

Sources for further reading:

Brendix, Aria and Lawrence Hurley (June 14, 2024). NBC News. Abortion pill access could still face challenges after Supreme Court decision.

Federal Drug Administration (n.d.). Questions and Answers on Mifepristone for Medical Termination of Pregnancy Through Ten Weeks Gestation. 

FioRito, Mary (June 22, 2024). National Catholic Register. FDA and Abortion Pills: Supreme Court’s Decision Solely About ‘Standing’ (National Catholic Register).

Fritze, John and Tierney Sneed (June 15, 2024). CNN. Supreme Court’s abortion pill ruling puts new focus on conservative Trump judge in Texas.

Klein, Betsy (June 13, 2024). CNN. Biden casts blame on GOP for attacks on medication abortion following Supreme Court ruling.

Johnson, Julia (June 23, 2024). FOX News. Balance of power: Schumer stretches abortion rights votes further into 2024, seizing on GOP vulnerability.

Lewis, Tanya (June 18, 2024). Scientific American. Abortion Pill Access Is Still Under Threat After SCOTUS Ruling, Legal Experts Warn.

McPhillips, Deidre (March 19, 2024). CNN. US abortions reach highest level in over a decade, sparked by surge in medication abortion. 

Nasman, Carl (May 23, 2024). BBC News. Louisiana designates abortion pills as controlled substances.

Planned Parenthood of Illinois (June 13, 2024). Planned Parenthood of Illinois Celebrates Protection of Abortion Pill.

Pro-Choice North Carolina (June 13, 2024). Pro-Choice North Carolina Statement on U.S. Supreme Court Ruling in FDA v. Alliance for Hippocratic Medicine.

Radford, Antoinette et al. (June 13, 2024). CNN. Supreme Court maintains access to abortion pill.

Rubin, Jordan (June 13, 2024). MSNBC. Supreme Court rejects mifepristone abortion pill challenge on standing grounds.

Supreme Court of the United States (June 13, 2024). Food and Drug Administration Et Al. v. Alliance for Hippocratic Medicine (2024).