Supreme Court preserves access to abortion pill mifepristone

Access to the abortion pill mifepristone will not change after the Supreme Court unanimously rejected an effort by anti-abortion groups to roll back its availability, a win for abortion rights supporters and millions of women in states where abortion is legal.

Despite the ruling, women’s access to mifepristone still largely depends on a patchwork of state laws, with only about half of states allowing full access under terms approved by the federal government.

“It doesn’t change anything anywhere,” said David S. Cohen, a law professor at Drexel University. “Tomorrow’s the same as today, which is the same as yesterday, which is the same as before this case was filed.”

▶ Read the AP’s handy guide to the mifepristone ruling.

Thousands of women in states with abortion bans and restrictions are receiving abortion pills in the mail from states that have laws protecting prescribers, a new report showed.

The release of the #WeCount survey shows about 8,000 women a month in states that severely restrict abortion or place limits on having one through telehealth were getting the pills by mail by the end of 2023, the first time a number has been put on how often the medical system workaround is being used. The research was conducted for the Society of Family Planning, which supports abortion rights.

Access largely depends on the laws in the state where a patient lives and, in the case of states banning or restricting mifepristone, what steps they are willing to take to circumvent them.

About half of U.S. states allows online prescribing and mail delivery of mifepristone, conforming to FDA’s label for the drug.

Currently, 14 states are enforcing bans on abortion at all stages of pregnancy. Another dozen or so states have laws specifically limiting how mifepristone can be prescribed, such as requiring an in-person visit with a physician or separate counseling about the potential risks and downsides of the drug.

Those steps are not supported by major medical societies, including the American Medical Association.

As anti-abortion groups quickly released statements expressing dismay over Thursday’s ruling, Republican lawmakers were largely quiet — marking a stark contrast to the flood of Democrats praising the ruling.

Rep. Mike Lawler, a moderate-leaning Republican running for reelection in New York City’s northern suburbs, was one of the few GOP members to not only comment on the decision but praise the court’s ruling.

“As I said when running for Congress, I do not support any efforts to establish a national ban on abortion, whether it be through Congress or through the judicial system,” Lawler said in a statement. “The Supreme Court’s decision today to preserve access to mifepristone is an important one and I am thankful that they heeded my call earlier this year to stand down on this issue.”

Three states previously joined the case seeking to restrict access to the drug, putting them in a position to revive legal claims against it.

One of those states was Kansas, where state Attorney General Kris Kobach said in a statement Thursday that the states are better positioned to challenge access to the drug.

“It is essential that this case continue in order to ensure that the FDA operates within the law,” he said in a statement.

Dozens of Democrats and abortion rights groups that celebrated the Supreme Court’s decision warned people of other ways abortion access is threatened around the country.

Millions of individuals will also still be unable to access mifepristone for abortions in more than a dozen states that have nearly banned abortion.

Republicans stayed largely quiet on the issue as Democrats released an onslaught of statements.

“Let’s be clear: women’s health remains under attack,” said Secretary Xavier Becerra, the nation’s top health official. “The overturning of Roe v. Wade paved the way for attacks on reproductive rights and women’s ability to make their own decisions about abortion, birth control, and IVF.”

Democrats are hoping that the current state of abortion will give them a boost at the polls in this year’s election, especially with women voters.

At least one state has gone further to restrict access to abortion pills, with an action that’s not expected to be affected by Thursday’s ruling.

Louisiana last month adopted a law classifying mifepristone and also misoprostol, a drug it’s usually used in combination with, as controlled and dangerous substances, which could make it harder to prescribe and obtain them.

The law, which is to take effect Oct. 1, would exempt from prosecution pregnant women who obtain the drugs without a prescription for their own use.

Dr. Grace Ferguson, an OB-GYN and abortion provider in Pittsburgh, called Thursday’s decision “a victory for science.”

She said in a text that the plaintiffs “were questioning the authority of the (Food and Drug Administration), and if we strike down their authority for approval of medicine safety then we are questioning everything.”

She pointed out that more than six in 10 abortions were done with medication last year, up from 53% in 2020, new research shows.

The New York-based Danco Laboratories, which makes mifepristone, said the decision “safeguards access to a drug that has decades of safe and effective use.” The drugmaker also said the ruling maintains “the stability of the FDA drug approval process, which is based on the agency’s expertise and on which patients, healthcare providers and the US pharmaceutical industry rely.”

The decision by a U.S. district court judge out of Texas last year that catapulted this case to the Supreme Court marked the first time a court had issued a decision to revoke approval of a drug FDA had deemed safe.

An open letter signed by nearly 300 biotech and pharmaceutical company leaders last year slammed the Texas ruling as undermining Congress’ delegated authority to the FDA to approve and regulate drugs. If justices can unilaterally overturn drug approvals, they said “any medicine is at risk.”

Pharmaceutical Research and Manufacturers of America, a lobbying group representing U.S. pharmaceutical companies, applauded the ruling, saying, “We are pleased to see today’s decision from the U.S. Supreme Court which helps provide innovative biopharmaceutical companies the certainty needed to bring future medicines to patients.”

U.S. District Judge Matthew Kacsmaryk has been at the center of the battle over mifepristone since he sparked a legal firestorm last year by ruling to halt the FDA approval of the pill. This set off a chain of events that brought the case before the Supreme Court.

An appointee of former President Donald Trump, Kacsmaryk is also the only district court judge in the Texas panhandle city of Amarillo, which means all cases filed there land in front of him. The number of lawsuits by conservative groups that have been filed in Amarillo have led to accusations of “judge shopping,” or purposefully seeking out a judge who’s likely to rule in your favor.

Kacsmaryk was confirmed in 2019 amid fierce opposition by progressive groups for his record opposing LGBTQ+ groups. Since then, his decisions have restricted birth control access, and he has ruled against the Biden administration on issues including LGBTQ+ protections and immigration.

He is also a former federal prosecutor and lawyer for the conservative First Liberty Institute.

In a statement, Vice President Kamala Harris used the decision to try to draw a contrast between President Joe Biden and his presumptive Republican opponent in the presidential election, former President Donald Trump.

“This ruling does not change the fact that millions of American women are today living under cruel abortion bans because of Donald Trump,” Harris said.

“Nor does this ruling change the threat to medication abortion. We know the Trump team has a plan to try to end access to medication abortion and carry out a Trump Abortion Ban in all 50 states, with or without Congress, if they get the chance. We cannot and will not let that happen.”

Democratic lawmakers celebrated the ruling as a major win for reproductive rights but warned of continuing attacks on abortion rights from their conservative counterparts.

Senate Majority Leader Chuck Schumer expressed relief on the decision, but said, “We are not out of the woods,” acknowledging that it was “based not on the merits, but on the lack of standing.

Former House minority leader Nancy Pelosi said it was “the right decision for millions of women nationwide.”

Sen. Elizabeth Warren of Massachusetts said the challenge to mifepristone “was meritless from the start.”

Rep. Pramila Jayapal of Washington said, “This is a massive victory for abortion access, but there is no question — we must codify access to reproductive care nationwide.”

Democratic Attorney General William Tong of Connecticut, one of 24 states that filed an amicus brief for the case, warned that anti-abortion advocates “have already started the process of coming back with new plaintiffs.”

Justice Kavanaugh, who wrote the unanimous decision, said the courts are “the wrong forum” for raising concerns about mifepristone regulation.

“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,” the ruling said.

Specifically on abortion and mifepristone, the justice said there’s also “the political and electoral processes” in which plaintiffs can express their views to fellow citizens.

The push to restrict abortion pills likely won’t stop with the Supreme Court’s ruling, the lawyer who represented anti-abortion doctors and their organizations said.

The justices’ finding that the doctors don’t have the legal right to sue leaves open possible arguments from others, including three other states who had previously been 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 continue the lawsuit originally filed in Texas.

Attorneys general for those states did not immediately respond to requests for comment on whether and how they might continue to suit originally filed before U.S. District Judge Matthew Kacsmaryk.

President Biden celebrated the decision and reaffirmed the safety and efficacy of mifepristone, but, echoing the language of many abortion rights groups, said that this “does not change the fact that the right for a woman to get the treatment she needs is imperiled if not impossible in many states.”

He warned that attacks on medication abortion would continue.

“The stakes could not be higher for women across America,” he said.

Women of color advocating for abortion access pointed out that restricting access to mifepristone could worsen racial health disparities. They argue that individuals of color and pregnant people from marginalized communities are more likely to face systemic barriers that limit their access to abortion and other reproductive health care. As a result, they rely on methods like medication abortion.

Monica Simpson, executive director of SisterSong, the nation’s largest organization dedicated to reproductive justice for women of color, said communities of color are more likely to live in reproductive health care deserts, use Medicaid or live in states with abortion bans.

“Having all of our options for abortion access is critically important for our community as attacks on mifepristone impact those who have historically been pushed to the margins the most,” she said.

Dr. Jamila Perritt, president and CEO of Physicians for Reproductive Health, said mifepristone is “critical” because of “its importance in expanding abortion access for our community members, especially those living at the intersections of systemic oppression disproportionately harmed by abortion bans and restrictions.”

The high court is separately considering the legality of Idaho’s abortion ban, which only allows doctors to perform abortions if the patient’s life is at risk.

The Biden administration has argued Idaho’s law conflicts with the Emergency Medical Treatment and Active Labor Act, also called EMTALA. The longstanding federal law requires emergency rooms to provide all patients who present at their hospital with stabilizing treatment, which might include abortions in extreme cases.

The court appeared sharply divided over the case when it heard arguments in April. But in the ruling released Thursday on mifepristone, the justices referred several times to EMTALA. The justices unanimously agreed with the Biden administration’s point that the federal law does not require doctors to perform an abortion if they object to it.

The law “neither overrides federal conscience laws nor requires individual emergency room doctors to participate in emergency abortions,” the justices wrote.

That’s an important point for the justices to agree on, particularly for the conservative members who oppose abortion.

The plaintiffs in the mifepristone case, anti-abortion doctors and their organizations, argued in court papers that the FDA’s decisions in 2016 and 2021 to relax restrictions on getting the drug were unreasonable and would “jeopardize women’s health across the nation.”

Kavanaugh acknowledged what he described as the opponents’ “sincere legal, moral, ideological, and policy objections to elective abortion and to FDA’s relaxed regulation of mifepristone.”

Federal laws already protect doctors from having to perform abortions, or give any other treatment that goes against their beliefs, Kavanaugh wrote. “The plaintiffs have not identified any instances where a doctor was required, notwithstanding conscience objections, to perform an abortion or to provide other abortion-related treatment that violated the doctor’s conscience since mifepristone’s 2000 approval,” he wrote.

In the end, Kavanaugh wrote, the anti-abortion doctors went to the wrong forum and should instead direct their energies to persuading lawmakers and regulators to make changes.

Those comments pointed to the stakes of the 2024 election and the possibility that an FDA commissioner appointed by Republican Donald Trump, if he wins the White House, could consider tightening access to mifepristone.

Kate Daniel, state policy director for SBA Pro-Life America: “It is a sad day for all who value women’s health and unborn children’s lives, but the fight to stop dangerous mail-order abortion drugs is not over.”

Kristan Hawkins, president of Students for Life of America: Hawkins called the decision “disappointing but not surprising,” expressing concern for the “conscience rights of the pro-life doctors.”

Reproductive rights groups across the country celebrated the ruling, but almost all stressed that the decision marked only a small win in their long-term battle over abortion access.

Destiny Lopez, Acting Co-CEO of the Guttmacher Institute: “Even with this baseless challenge defeated, we must remain vigilant. ... The anti-abortion movement is ruthlessly pursuing its end goal of banning abortion nationwide.”

Jennifer Dalven, director of the ACLU Reproductive Freedom Project: “Although the Court refused to allow these particular people to bring this case, anti-abortion politicians are waiting in the wings to attempt to continue pushing this case before an extremist judge in Texas in an effort to deny people access to medication abortion care.”

The Democratic Legislative Campaign Committee: “Despite the Supreme Court’s decision today, millions of people will still have restricted access to the health care they deserve.”

Since the Supreme Court removed the nationwide right to abortion, most Republican-controlled states have new abortion restrictions in effect, including 14 that ban it at every stage of pregnancy. Most Democratic-led states have laws or executive orders to protect access.

Additionally, voters in seven states — California, Kansas, Kentucky, Michigan, Montana, Ohio and Vermont — have sided with abortion rights supporters on ballot measures.

It’s not clear yet how many states will vote on measures to enshrine abortion access in November. In some, the question is whether amendment supporters can get enough valid signatures. In others, it’s up to the legislature. And there’s legal wrangling in some states.

▶ Read more about the status of abortion rights in every state.

When the Supreme Court heard oral arguments for the case in March, the safety of mifepristone was at the heart of the debate.

There are rare occasions when mifepristone can cause dangerous, excessive bleeding that requires emergency care. Because of that, the FDA imposed strict safety limits on who could prescribe and distribute it.

The doctors also had to be capable of performing emergency surgery to stop excess bleeding and an abortion procedure if the drug didn’t end the pregnancy. Over the years, the FDA reaffirmed mifepristone’s safety and repeatedly eased restrictions, culminating in a 2021 decision doing away with any in-person requirements and allowing the pill to be sent through the mail.

▶ Read more about the drug’s safety

Mifepristone is regularly used for patients who are experiencing pregnancy loss.

Mifepristone is used “off label” to treat early pregnancy losses or help the delivery of a fetus that has died later in pregnancy. A million U.S. women a year suffer miscarriages, a problem that occurs in at least 15% of known pregnancies.

▶ Read more about how legal challenges to abortion impact miscarriage care

Dr. Jamila Perritt, president and CEO of Physicians for Reproductive Health, said the ruling “demonstrates a valuing of science, medical expertise, and centering the needs of our communities.”

“The Court’s dismissal on standing allows us to center the medical recognition of the facts is a powerful affirmation of what we have always known: mifepristone is a safe and essential medication, and there is no legitimate medical or scientific reason why access to mifepristone should be limited,” said Perritt, who is also an OB/GYN in Washington, D.C.

Nancy Northup, president and CEO of the Center for Reproductive Rights, expressed relief at the decision but frustration that the case, which she called “meritless,” made it up to the Supreme Court at all.

“Unfortunately, the attacks on abortion pills will not stop here — the anti-abortion movement sees how critical abortion pills are in this post-Roe world, and they are hell bent on cutting off access,” she added.

Mini Timmaraju, president and CEO of the national abortion rights group Reproductive Freedom for All, echoed similar feelings. While expressing relief she also said, “This baseless push to block abortion access should never have been heard by them in the first place.”

The mifepristone case began five months after the Supreme Court overturned Roe v. Wade. Abortion opponents initially won a sweeping ruling nearly a year ago from U.S. District Judge Matthew Kacsmaryk, a Trump nominee in Texas, that would have revoked the drug’s approval entirely. The 5th U.S. Circuit Court of Appeals left intact the FDA’s initial approval of mifepristone, but it would reverse changes regulators made in 2016 and 2021 that eased some conditions for administering the drug.

The Supreme Court put the appeals court’s modified ruling on hold, then agreed to hear the case, though Justices Samuel Alito, the author of the decision overturning Roe, and Clarence Thomas would have allowed some restrictions to take effect while the case proceeded.

Justice Brett Kavanaugh wrote for the court that “federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions.”

Kavanaugh was part of the majority to overturn Roe.

Health care providers have said that if mifepristone is no longer available or is too hard to obtain, they would switch to using only misoprostol, which is somewhat less effective in ending pregnancies.

President Joe Biden’s administration and drug manufacturers had warned that siding with abortion opponents in this case could undermine the FDA’s drug approval process beyond the abortion context by inviting judges to second-guess the agency’s scientific judgments. The Democratic administration and New York-based Danco Laboratories, which makes mifepristone, argued that the drug is among the safest the FDA has ever approved.

The abortion opponents argued in court papers that the FDA’s decisions in 2016 and 2021 to relax restrictions on getting the drug were unreasonable and “jeopardize women’s health across the nation.”

More than 6 million people have used mifepristone since 2000. Mifepristone blocks the hormone progesterone and primes the uterus to respond to the contraction-causing effect of a second drug, misoprostol. The two-drug regimen has been used to end a pregnancy through 10 weeks gestation.

New York Attorney General Letitia James has called the ruling a “major victory for reproductive rights across our nation.”

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

The justices ruled that abortion opponents lacked the legal right to sue over the federal Food and Drug Administration’s approval of the medication, mifepristone, and the FDA’s subsequent actions to ease access to it.

The case had threatened to restrict access to mifepristone across the country, including in states where abortion remains legal.