Supreme Court maintains broad access to abortion pill

WASHINGTON — The Supreme Court on Thursday maintained access to a widely available abortion pill, rejecting a bid from a group of anti-abortion organizations and doctors to undo the Food and Drug Administration’s approval of the drug.

In a unanimous decision, written by Justice Brett Kavanaugh, the court held that the anti-abortion groups lacked a direct stake in the dispute, a requirement to challenge the FDA’s approval of the pill, mifepristone.

“The plaintiffs do not prescribe or use mifepristone,” Kavanaugh wrote. “And FDA is not requiring them to do or refrain from doing anything.”

He added: “A plaintiff’s desire to make a drug less available for others does not establish standing to sue.”

The case originally sought to erase the FDA’s approval of mifepristone. But by the time it reached the Supreme Court, the question had been narrowed to whether the agency had acted legally in 2016 and 2021, when it broadened distribution of the pill, eventually including telemedicine and mail options.

The ruling handed a muted victory to abortion rights groups. Even as they praised the decision for averting severe restrictions on the availability of the pill, they warned that the outcome could be short-lived.

Anti-abortion groups vowed to press ahead, promising that the fight was far from over and raising the possibility that other plaintiffs, states in particular, would mount challenges to the drug.

The ruling did not affect separate restrictions on the pill in more than a dozen states that have passed near-total bans on abortion since the court eliminated a constitutional right to the procedure in Dobbs v. Jackson Women’s Health Organization. (The bans do not distinguish between medication and surgical abortion.)

Access to abortion remains broadly popular, and ever since the court overturned Roe v. Wade two years ago, prompting some states to swiftly enact bans, the issue has been a major focus of political campaigns. Democrats have succeeded in galvanizing voters to defeat anti-abortion measures and plan to highlight abortion rights in the November elections.

By dodging a ruling on the substance of the case, the justices avoided delivering a clear, substantive win to either political party or a decision they could use to motivate their base.

President Joe Biden said in a statement that the “decision does not change the fact that the fight for reproductive freedom continues.”

He added: “It does not change the fact that the Supreme Court overturned Roe v. Wade two years ago, and women lost a fundamental freedom.”

The Biden campaign also raised concerns that the ruling would not be enough to protect access to abortion medication if former President Donald Trump wins a second term, saying his administration would move to enforce new restrictions through executive action.

Trump had wrestled with what position to take on abortion access after the Supreme Court, whose conservative supermajority he appointed, overturned the Roe v. Wade landmark abortion-rights case. Several weeks ago, he said it was up to states to set their own policies.

His campaign suggested he staked out a similar position on the abortion pill ruling, without addressing how his administration would handle regulation of the drug. “The Supreme Court has unanimously decided 9-0; the matter is settled,” said Danielle Alvarez, a Trump spokesperson.

Abortion-rights groups cautioned that the ruling only maintained the status quo.

“The anti-abortion movement sees how critical abortion pills are in this post-Roe world, and they are hell-bent on cutting off access,” Nancy Northup, president of the Center for Reproductive Rights, said in a statement.

Erin Hawley, senior counsel for Alliance Defending Freedom, a conservative legal organization that represented the plaintiffs, suggested that the case could be revived through three Republican-led states, Idaho, Kansas and Missouri, which had intervened as plaintiffs at the lower-court level.

“We are grateful that three states stand ready to hold the FDA accountable for jeopardizing the health and safety of women and girls across this country,” Hawley said in a statement.

Mifepristone, part of a two-drug regimen, is used in nearly two-thirds of abortions in the United States. Many studies have found the pill to be safe, and years of research have shown that serious complications are rare.

After the FDA loosened restrictions on the drug’s availability during the pandemic — allowing for it to be prescribed online or sent by mail — its use only increased. A rising number of medication abortions are prescribed by telemedicine. By one count, about 1 in 6 abortions, or about 14,000 a month, happened via telehealth from July through September.

Medication abortion has become a practical form of abortion for women in states where the procedure is banned. Clinicians, protected by so-called shield laws in several states where abortion is legal, have mailed pills to women based in states with bans.

Kavanaugh focused part of the majority opinion on why the justices disagreed with rulings by lower courts, which all determined the groups had standing to bring the case.

Citing Justice Antonin Scalia, Kavanaugh wrote that to bring a suit, a plaintiff first must answer a basic question: “What’s it to you?”

Plaintiffs must show “a predictable chain of events leading from the government action to the asserted injury,” Kavanaugh wrote.

In this instance, he wrote, the doctors and medical associations trying to challenge FDA’s regulation failed to show an actual injury because the plaintiffs did not include people actually involved with the pill, such as doctors who prescribed mifepristone or pregnant women who took it.

The plaintiffs’ claims that they have “sincere legal, moral, ideological, and policy objections to mifepristone being prescribed and used by others” do not meet the threshold of standing to sue, Kavanaugh wrote.

The justices also rejected an argument by the anti-abortion doctors that they had standing to sue because they could be required to provide emergency abortions against their conscience.

Federal conscience laws already protect doctors from being required to perform abortions or other treatment that violates their consciences, and none of the doctors had shown otherwise, Kavanaugh wrote.

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