This week, the Supreme Court announced its decision to reject a bid to restrict access to mifepristone, an abortion pill. The case had been brought by doctors who opposed a new FDA policy making it easier to access medication abortions. The Court found that the plaintiffs did not have the legal standing to bring the suit and dismissed the lawsuit, leaving the FDA rule intact.
Use of Mifepristone
The use of mifepristone is one of two components in an FDA-approved regimen that induces a medication abortion. This form of abortion is now the most common mode of abortion in the United States.
Unanimous Supreme Court Decision
The Supreme Court’s decision was unanimous. It found that the party who brought the lawsuit—pro-life doctors and other medical professionals—did not have legal standing to contest the FDA rule.
Opinion by Justice Brett Kavanaugh
Supreme Court Justice Brett Kavanaugh wrote the Opinion for the case, stating that the plaintiffs, the pro-life doctors, had “sincere legal, moral, ideological, and policy objections to elective abortion and FDA’s relaxed regulation of mifepristone.”
Requirement for Demonstrated Injury
Despite sincerely held beliefs, plaintiffs must also be able to demonstrate that they have been injured by the rule, which the Court held that they could not do. Speaking for his fellow Justices, Kavanaugh said the “federal courts are the wrong forum for addressing the plaintiff’s concerns about FDA’s action.”
Alternative Avenues for Plaintiffs
Since the Courts cannot provide the relief sought by the plaintiffs, the Court Opinion pointed the plaintiffs toward the best way to address their concerns. Kavanaugh wrote, “The plaintiffs may present their concerns and objections to the president and FDA in the regulatory process or to Congress and the president in the legislative process.”
Expressing Views Through Political Processes
Furthermore, “They may also express their views about abortion and mifepristone to fellow citizens, including in the political and electoral processes.”
Potential for Future Cases
Thus, the Court did not directly rule on whether the FDA’s rule of easing access to mifepristone is lawful. The Court could potentially hear the case again if an injured party brings a suit similar to the physician-plaintiffs.
FDA’s Lifting of Restrictions
The group of pro-life doctors claimed in their lawsuit that the FDA acted unlawfully in lifting restrictions on the regulated drug, especially in allowing individuals to receive the drug via mail.
Access to Mifepristone Extended
The Court’s decision to dismiss the case also allows women to access mifepristone within the first ten weeks of pregnancy. Before the FDA changes, the drug was only available for the first seven weeks of gestation.
Prescription by Non-Physicians
A third change to federal regulations on mifepristone, which will remain intact with the lawsuit’s dismissal, allows healthcare providers who are not physicians to prescribe mifepristone.
Reactions from Abortion Groups
This case was closely watched by pro and anti-abortion groups, who were uncertain about the disposition of the Court in the wake of the landmark ruling in Dobbs in 2022, which overturned 1973’s Roe v. Wade. This case granted a federal right to abortion.
Post-Dobbs Legal Landscape
When the Court ruled in Dobbs to allow states to regulate abortion, the Court presumed it would no longer be the place of adjudication on the abortion question. However, state-level restrictions on abortion that have emerged in many conservative states have kept the courts and potentially the Supreme Court on appeal busy on litigation issues related to the matter.
Pending Abortion-Related Cases
The current case relating to increased access to mifepristone is not the only abortion-related case pending before the Supreme Court. They have heard arguments this term on an Idaho law that would ban abortions in an extensive number of cases. In Idaho, opponents to the law have suggested that the law will tie the hands of doctors in the emergency department, preventing them from performing abortions when the woman is facing complications. Still, it is not clear whether abortion would mean the difference between life and death.
State Abortion Bans
Following the Dobbs decision, 14 states have banned abortion in most of its forms, according to abortion rights activist research group the Guttmacher Institute. The easing of access to abortion drugs by the FDA was a means to grant access to populations of those states and others despite the state legislature enacting rules to restrict abortions in the state.
Support from the Pharmaceutical Industry
The pharmaceutical industry supported the FDA rule in question. Drug companies that manufacture abortion drugs have stated that if the FDA rule is overturned or mired by lengthy lawsuits or altered by judges on the bench, the result would be chaos and would also disincentivize innovation in the reproductive healthcare space.
Impact of Supreme Court Decision
The current lawsuit dismissed by the Supreme Court has allowed the FDA rule to remain in effect throughout the appeal process.
