Supreme Court rejects abortion pill challenge, preserving wide access to drug

The ruling ensures the pills, which are the most common method for ending a pregnancy in the US, will for now remain widely available.

A pro-abortion rights activist holds a box of mifepristone during a rally in front of the US Supreme Court. Picture: AFP

The Supreme Court on Thursday unanimously rejected an effort seeking to restrict access to the abortion pill mifepristone, ruling that a group of anti-abortion doctors who filed suit had no legal standing to challenge Food and Drug Administration regulations for prescribing the drug.

“A plaintiff’s desire to make a drug less available for others does not establish standing to sue,” Justice Brett Kavanaugh wrote for the court.

The ruling overturned lower federal courts that had accepted the theory that someday a woman suffering from complications from mifepristone could present herself for treatment to one of the plaintiff physicians, thereby giving the doctor a stake in the case.

The case was the first major abortion issue to come before the court since its 2022 decision overturning Roe v. Wade and rescinding the federal right to end unwanted pregnancies it had recognised since 1973.

That ruling bitterly divided the court over constitutional views about individual rights. But Thursday’s case turned on procedural questions involving the right to sue, and in that area the most ardent opponents of Roe and its most determined defenders found common ground.

The ruling ensures the pills, which are the most common method for ending a pregnancy in the U.S., will for now remain widely available. The challenge had threatened to restrict access to the drug even in the majority of states, including New York, Illinois and California, where abortion is legal.

The plaintiffs brought the challenge in November 2022, arguing the FDA had improperly approved the drug two decades ago under a pathway for medications used to treat serious and life-threatening illness. They also said the agency had failed to properly study the safety of more recent changes, including allowing the drug to be administered without an in-person visit to a medical provider.

Attorneys for the Alliance Defending Freedom, a conservative legal group that brought the suit, had argued that doctors were harmed when women visit the emergency room or a doctor’s office with complications or incomplete abortions and they must treat them in violation of their ethical objections to the procedure. Kavanaugh said that such concerns are addressed by federal conscience protections that allow doctors to opt out of providing such care if they have moral objections.

The FDA has said the pill has proven safe over years of use by millions of women and that exhaustive scientific research supported more recent changes loosening restrictions on the drug. The agency said in a legal brief that as of December 2022, 32 deaths had been reported among nearly six million women who have taken mifepristone and some of those had obvious alternative causes, such as drug overdose.

The lawsuit took a dramatic ride through the courts. A federal district judge last year suspended approval of mifepristone altogether, though that ruling never went into effect.

An appeals panel later rolled back much of the ruling, saying it was too late to challenge the drug’s original approval. But the appeals court did find that the plaintiffs had standing to sue, and it ruled the FDA’s efforts beginning in 2016 to make the pill more available were unlawful. The Supreme Court had previously put that ruling on hold, preserving the status quo of widespread mifepristone access while it considered the case.

Abortion-rights supporters cautioned that they viewed Thursday’s decision as a temporary reprieve, not a resolution of questions about the pill’s future.

The US Supreme Court in Washington, DC. Picture: AFP

President Biden in a statement said the ruling “does not change the fact that the right for a woman to get the treatment she needs is imperilled if not impossible in many states.”

“Let’s be clear: attacks on medication abortion are part of Republican elected officials’ extreme and dangerous agenda to ban abortion nationwide,” Biden said.

A spokeswoman for Danco, which manufactures the brand-name version of the drug, said the decision “safeguards access to a drug that has decades of safe and effective use.”

The abortion-pill litigation had been a key part of the anti-abortion movement’s strategy since Roe was overturned. Even after Thursday’s decision, efforts by conservatives to limit access to the pill are likely to continue. Three Republican state attorneys general have intervened in the litigation, arguing they have standing to sue because their states have incurred additional healthcare costs to treat women who have suffered physical and mental side effects from taking the pill.

Some anti-abortion groups also hope that if former President Donald Trump wins a second presidential term, his administration will enforce the Comstock Act, a 19th-century law that outlawed shipping abortion drugs across state lines.

“While we’re disappointed with the court’s decision, we will continue to advocate for women and work to restore commonsense safeguards for abortion drugs,” said Erin Hawley, who argued the case for the Alliance Defending Freedom.

The pill case won’t be the last time the justices weigh in on abortion access this term. The court in the next couple of weeks is expected to decide a separate case out of Idaho that centres around the question of whether a federal law that requires hospitals to provide stabilising care for patients at risk of death or serious injury trumps state abortion bans that allow doctors to perform the procedure only if a woman’s life is in jeopardy.

The Wall Street Journal