Mifepristone is safe for now, but another challenge waits on the horizon
On Thursday, in Alliance for Hippocratic Medicine v. FDA, the Supreme Court unanimously dismissed a lawsuit intended to limit access to mifepristone, a drug commonly used in medication abortions.
The court ruled that the plaintiffs, consisting of doctors and medical groups, lacked the legal standing to challenge the Food and Drug Administration's decisions from 2016 and 2021, which had expanded access to the drug.
The ruling means that mifepristone, a drug used in almost two-thirds of abortions in the U.S. last year, will still be available, including by mail. Doctors expressed worries that if mifepristone became hard to get, they would have to rely only on misoprostol, which is not as effective for ending pregnancies.
The court's decision doesn't settle the main arguments about mifepristone but keeps things as they are — for now.
Meanwhile, the court is also considering another important case, United States v. Texas, which will address whether the federal Emergency Medical Treatment and Labor Act that mandates emergency medical treatment should take precedence over state abortion bans in situations where a pregnant woman's health is in serious danger.
Justice Brett Kavanaugh, writing for the Supreme Court, recognized the plaintiffs' "sincere legal, moral, ideological, and policy objections" to elective abortion and the FDA's relaxed regulation of mifepristone. However, he explained that the challengers failed to demonstrate personal harm from the FDA's policies, which is necessary to bring a case in federal court. He suggested that such objections should be addressed through political or regulatory channels instead.
Notably, the decision does not preclude future challenges to the FDA's actions. Earlier this year, the attorneys general of Idaho, Missouri and Kansas, all Republicans, joined the dispute in a lower court.
While the news may be a brief reprieve for women seeking medical abortions, this decision seems like a set-up.
The idea of Kavanaugh writing the ultimate mifepristone decision for the Supreme Court and having it be one that allows the abortion pill to continue to be legally sold is too much for me to wrap my mind around. When all is said and done, all I see here is a really bad case, one in which the plaintiffs obviously didn’t have standing. Someone else will bring another case — a better, stronger and far more bulletproof one, because the court left the door wide open on Thursday.
Ultimately, I just don’t believe this ruling is as significant a setback for the anti-abortion movement as it has been portrayed in the media since the court's decision.
Although Alliance for Hippocratic Medicine v. FDA was the first major Supreme Court case on reproductive rights since the court’s strong conservative majority overturned Roe v. Wade in 2022 through its decision in Dobbs v. Jackson Women’s Health Organization, the case was fundamentally flawed from the start. The appeal to the Supreme Court was filed by anti-abortion doctors who claimed their practices were affected by having to treat women with complications from the drug. But they clearly never had the legal standing to file this appeal.
The idea that this is also going to take the edge off Dobbs is ridiculous. It’s not going away any time soon — likely not in this generation. The same battlelines that have existed since Roe and were made much more bold by Dobbs still exist after this decision.
Aron Solomon, JD, is the chief strategy officer for Amplify. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world.