Abortion Pill Access Is Still Under Threat After SCOTUS Ruling, Legal Experts Warn
“It would be foolish to declare victory” for abortion rights, one expert says of the recent Supreme Court challenge to medication abortion access
Demonstrators outside the U.S. Supreme Court in Washington, D.C. on March 26, 2024. The Court ruled in favor of preserving access to the abortion pill last week.
Valerie Plesch/Bloomberg via Getty Images
Reproductive rights supporters celebrated last week when the U.S. Supreme Court unanimously ruled to dismiss a case challenging the approval of the widely used abortion drug mifepristone. Though the ruling preserved medication abortion access for millions of Americans, it left the door open to future challenges by lower courts and state legislatures. The Supreme Court is expected to rule on another high-profile case involving abortion access later this term.
Last week’s ruling was widely expected, legal experts say. “Anybody that values reproductive freedom and the scientific integrity of the [U.S. Food and Drug Administration] can breathe a sigh of relief,” says Lawrence Gostin, a professor of global health law at Georgetown University. But “it would be foolish to declare victory” for abortion rights, he says. The ruling was a narrow legal technicality that didn’t go into the case’s actual merits. It’s quite possible, Gostin says, that the Court could make future rulings that restrict access to medication abortion and usurp the FDA’s broader authority to regulate drug safety.
Numerous peer-reviewed scientific studies have shown mifepristone to be safe and effective; it is currently used in the majority of medication abortions.
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The recent Supreme Court case involved a lawsuit originally brought in Texas in April 2023 by a group of antiabortion activists called the Alliance for Hippocratic Medicine. The group alleged that the FDA had harmed patients and doctors by ignoring safety concerns when it approved mifepristone in 2000 and by loosening restrictions on access to the drug in 2016 and 2021—such as by making it available via telehealth in the latter year. Texas-based U.S. district Judge Matthew Kacsmaryk ruled in favor of the plaintiffs, but the decision was appealed to the Fifth Circuit Court of Appeals.
Last August the appeals court upheld the lower court’s restrictions on mifepristone. The drug remained available, however, while the Supreme Court reviewed an appeal brought by the FDA and mifepristone’s manufacturer, Danco Laboratories.
In its recent decision, the Supreme Court argued that the plaintiffs did not have standing—a legal requirement to show they were harmed by the defendants’ actions—because they were not directly impacted by the FDA’s approval of mifepristone or the agency’s loosening of restrictions. “The plaintiffs do not prescribe or use mifepristone,” the ruling states. “And FDA is not requiring them to do or refrain from doing anything.”
“It was pretty obvious they did not have standing,” says Mary Ziegler, a law professor at the University of California, Davis, who specializes in reproduction, health care and conservatism in the U.S. “The arguments were extraordinarily bad. It’s a little bit revealing that this case even made it to the Supreme Court.”
Ushma Upadhyay, a professor and public health scientist at the University of California, San Francisco, agrees. “All of the evidence affirms that this medication is safe and effective,” she says.
But the ruling leaves room for future cases that could be brought by someone who might be deemed to qualify for standing. Ziegler says the Supreme Court has a very broad interpretation of federal conscience protections, which prevent doctors from having to perform abortions or other procedures that violate their personal moral views. So a doctor could theoretically bring a case arguing that they had been harmed by being forced to provide abortion care that went against their conscience. If the Supreme Court believed such a plaintiff had standing, it could rule differently on mifepristone next time.
The Supreme Court is expected to rule on another abortion case this term. That case involves whether a federal law called the Emergency Medical Treatment and Active Labor Act requires hospitals to provide medical care—including abortions—to people who need emergency treatment, even when it violates state abortion laws.
Gostin is not convinced the Court will side with abortion advocates in that case, which was brought by the state of Idaho. “What’s at stake is whether [the law] will apply to everyone except to somebody who’s pregnant. It’s outrageous,” he says. “Abortion is literally health care, pure and simple.”
Ziegler thinks the Supreme Court is likely to rule in Idaho’s favor. The state’s law bans all abortions except ones to save the life of the pregnant person. While that would seem to be in accord with federal law, the Biden administration is arguing that the law requires hospitals to provide treatment not just to save a person’s life but also to preserve their health.
Medication abortion access will be decided by state laws in addition to the courts, Upadhyay says. Louisiana’s legislature recently passed a law that puts mifepristone and another drug commonly used in medication abortions, misoprostol, in the same category as “controlled dangerous substances.” People in possession of these drugs could be fined thousands of dollars and face jail time. The threat of going to jail or losing their license has intimidated reproductive health care workers in some states into not providing care out of an abundance of caution—even in cases where that care is not clearly prohibited.
Beyond state-level legislation, existing federal legislation poses a threat to abortion access throughout the country. A 19th-century law called the Comstock Act prohibits the distribution of “obscene” materials in the mail, including those related to abortion or contraception. The act has been weakened over the years but has never been taken off the books. The Biden administration’s Department of Justice has stated that the law does not apply to mailing mifepristone.
If Donald Trump is re-elected in November, however, his administration’s DOJ could decide to enforce that law against anyone who sends abortion medication via the mail—including to hospitals—even in states where abortion is legal. “This is absolutely a threat. And that threat would not just affect pregnant individuals in red states; it would affect everybody in the entire country, including the bluest of blue states,” Gostin says. “This would be an effective nationwide ban on the most common method of abortion.”
Such a threat is not idle speculation. “There are people who are former Trump administration officials who have advocated for that position very publicly,” Ziegler says. She personally does not interpret the Comstock Act as applying to abortion medication. “But if they read it like that, there are not limits on what they could do,” Ziegler adds.
