A unanimous Supreme Court preserves access to widely used abortion drugs

WASHINGTON — The Supreme Court unanimously upheld access Thursday to a drug that was used in nearly two-thirds of all U.S. abortions last year, marking the court’s first decision on abortion since conservative justices overturned Roe v. two years ago Wade.

Nine judges ruled that abortion opponents had no standing to bring a lawsuit over the federal Food and Drug Administration’s approval of the drug mifepristone and subsequent FDA actions to ease access to it. The case threatened to restrict access to mifepristone across the country, including in states where abortion remains legal.

Abortion is banned at all stages of pregnancy in 14 states and after about six weeks of pregnancy in three others, often before a woman realizes she is pregnant.

Justice Brett Kavanaugh, who was part of the majority in favor of overturning Roe, wrote the court on Thursday that “federal courts are the inappropriate forum in which to address plaintiffs’ concerns about FDA actions.”

The opinion highlights what is at stake elections in 2024 and the possibility that the FDA commissioner appointed by Republican Donald Trump, if he wins the White House, could consider tightening access to mifepristone, including banning it by mail.

The Kavanaugh opinion managed to unite a court deeply divided over abortion and many other divisive social issues by using a minimalist approach that focused solely on technical legal issues related to standing and included no ruling on the FDA’s actions. Kavanaugh’s seven “pro-life” references to abortion opponents may have been the only language in his view that revealed anything of his views on abortion.

While praising the decision, President Joe Biden signaled that Democrats will continue to campaign heavily on abortion issues ahead of the November election. “This does not change the fact that a woman’s right to receive the treatment she needs is threatened, if not impossible, in many states,” Biden said in a statement.

Marjorie Dannenfelser, president of SBA Pro-Life America, expressed disappointment with the ruling but directed her fire at Democrats. “Joe Biden and the Democrats are committed to forcing abortion on demand in every state in the country at any time for any reason, including do-it-yourself mail-order abortion,” Dannenfelser said.

According to the survey, about two-thirds of American adults oppose a nationwide ban on the apply of mifepristone, or medical abortion. KFF poll conducted in February. About a third support a nationwide ban.

The Supreme Court is separately considering another abortion case, about whether Federal Emergency Treatment Act in hospitals repeals state bans on abortion in sporadic, emergency cases in which the health of the pregnant patient is at earnest risk.

Since 2000, more than 6 million people have taken mifepristone. Mifepristone blocks the hormone progesterone and prepares the uterus to respond to the contracting effects of the second drug, misoprostol. Two-drug regimen was used to terminate pregnancy up to the 10th week of pregnancy.

Health care providers say that if mifepristone is no longer available or too arduous to obtain, they will switch to using only misoprostol, which is slightly less effective at terminating pregnancies.

The Biden administration and drugmakers have warned that siding with abortion opponents in the case could undermine the FDA’s drug approval process outside the abortion context, encouraging judges to second-guess the agency’s scientific assessments. This was argued by the Democratic administration and the New York-based company Danco Laboratories, which produces mifepristone the drug is one of the safest ever approved by the FDA.

The decision “provides access to a medicine that has decades of safe and effective use,” Danco spokeswoman Abigail Long said in a statement.

Mifepristone plaintiffs, anti-abortion doctors and their organizations argued in court documents that the FDA’s 2016 and 2021 decisions to ease restrictions on receiving the drug were unwise and “threaten the health of women across the country.”

Kavanaugh acknowledged what he called opponents’ “sincere legal, moral, ideological and political objections to elective abortion and the FDA’s lax regulation of mifepristone.”

Federal laws already protect doctors from having to perform abortions or provide other treatments that conflict with their beliefs, Kavanaugh wrote. “Plaintiffs have identified no case since the approval of mifepristone in 2000 in which a physician was required to perform an abortion or provide other abortion-related treatment that violated the physician’s conscience,” he wrote.

Ultimately, Kavanaugh wrote, anti-abortion doctors were in the wrong forum and should instead direct their energy toward persuading lawmakers and regulators to make changes.

Abortion rights supporters mostly breathed a sigh of relief over the decision, but echoed Biden on the impact of the decision two years ago.

“Ultimately, this ruling is not a victory for abortion – it simply maintains the status quo, which is a serious public health crisis that has resulted in 14 states criminalizing abortion,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement.

The mifepristone case began five months after the Supreme Court overturned Roe. Abortion opponents initially won a sweeping ruling almost a year ago U.S. District Judge Matthew Kacsmaryk, Trump’s Texas nominee, which would have resulted in the drug’s approval being completely revoked. The 5th U.S. Circuit Court of Appeals left intact the FDA’s preliminary approval of mifepristone. However, this would reverse changes made by regulators in 2016 and 2021, which relaxed some conditions for administering the drug.

The Supreme Court set aside the appeals court’s modified ruling and then agreed to hear the case, although Justices Samuel Alito, the author of the Roe overturning decision, and Clarence Thomas would allow certain restrictions to go into effect while the case was pending. But they also joined the court’s Thursday opinion.

Pressure to restrict the apply of abortion pills will likely continue with the Supreme Court’s ruling, said a lawyer representing anti-abortion doctors and their organizations in the case.

The decision finding that doctors are barred from filing lawsuits opens the door to lawsuits from others, including three other states that Kacsmaryk previously allowed to join the case, said Erin Hawley, an attorney for the group Alliance Defending Freedom.

Hawley said she expects Idaho, Kansas and Missouri to pursue the lawsuit originally filed in Texas.

Kansas Attorney General Kris Kobach, a Republican, said in a statement that the states “have a position that has not been confirmed by medical experts,” confirming he would pursue the case in Kacsmaryk’s court.