The US Supreme Court has decided to hear a case challenging access to abortion pills in the United States, including in states where abortion is legal.
Whatever the court decides, this will be the most consequential case for access to reproductive healthcare since the overturning of Roe v. Wade in 2022. Pills are now the most common abortion method in the US; curtailing the availability of medication abortion would be a major blow to reproductive healthcare.
The Supreme Court will hear the this term, which means a decision may come in summer 2024, in the midst of the US presidential election season.
The ongoing legal saga centered on access to mifepristone began way back in 2002, when an alliance of anti-abortion activist groups first challenged the approval of the drug with a citizen petition. (The standard two-step regimen of medication abortion, which couples mifepristone with another drug, misoprostol, has been legal in the United States since 2000, when the Food and Drug Administration first approved mifepristone.) The FDA ignored that initial challenge, but the coalition of activists persisted.
In November 2022, the group brought suit in Texas, claiming that the FDA’s original approval process was flawed because it did not properly assess safety risks. An initial ruling from Judge Matthew Kacsmaryk of the Northern District of Texas sided with the plaintiffs, invalidating the FDA’s approval. (Kacsmaryk is a President Trump appointee, known for his anti-abortion views.)
In April, shortly after the initial ruling, the Fifth Circuit Court of Appeals partly overruled Kacsmaryk, allowing mifepristone to stay on the market but overturning the ability to receive the medication by mail. At the urging of the Biden Administration, the Supreme Court then ordered a stay until the appeals process concluded. This bought virtual abortion clinics some time, as they would have otherwise been forced to modify how they operated. Some clinics have planned to continue offering medication abortion, but with a one-pill regime of misoprostol.
In September, the Justice Department asked the Supreme Court to intervene in an attempt to end the legal logjam. In court papers filed that month, US Solicitor General Elizabeth Prelogar stressed that the Fifth Circuit’s decision was the first time a court had doubted the FDA’s judgement on whether a drug should be allowed on the market, and that upholding it would upend the way medications are developed and approved in the US. “The logic of the Fifth Circuit’s unprecedented decision would threaten to severely disrupt the pharmaceutical industry and prevent FDA from fulfilling its statutory responsibilities according to its scientific judgment,” Prelogar wrote.
Overturning Roe demonstrated how sympathetic the Supreme Court can be toward anti-abortion activism. But curtailing mifepristone access may be too extreme even for this iteration of the Court.
“Hopefully, the fact that the Court denied cert in the cross-petition is an indication that they don’t want to upset the apple cart with FDA approval,” says David S. Cohen, a professor of law at Drexel University who studies abortion rights and the law. “But, it’s scary to have this Supreme Court once again wade into abortion.”
