US Supreme Court upholds access to abortion pill in unanimous ruling

The U.S. Supreme Court on Thursday gave a long-awaited respite to the pro-choice movement with a ruling that, for the first time, maintains unrestricted access to mifepristone, a drug that is used, along with misoprostol, in 63% of pregnancy terminations performed in the country, according to data from the Guttmacher Institute.

The unanimous ruling came as no surprise to those who were following the hearing, where the justices implied that they were leaning towards this decision. It comes nearly two years after the Supreme Court ruling that overturned Roe v. Wade, the landmark precedent that established the constitutional right to abortion in 1973. That ruling opened a new era in U.S. women’s reproductive freedom and health by giving states the power to legislate on abortion: so far, at least 21 have banned or severely restricted access.

With their ruling on Thursday, the nine justices (three liberals and six conservatives, three of whom were appointed by Donald Trump) overturned a New Orleans appeals court ruling that banned the mail distribution of mifepristone. If the justices had decided otherwise, mifepristone would have been banned federally — even in the states where the right to abortion is expressly protected. The ruling, however, does not mean that the drugs can be used in the 14 states that have a total abortion ban.

In the 34-page ruling, drafted by Trump appointee Brett Kavanaugh, the justices argued that the plaintiffs — an association of anti-abortion Christian doctors that was created expressly to launch the case against the Food and Drug Administration (FDA) — lacked the legal right to sue. For that, “a plaintiff must demonstrate (i) that she has suffered or likely will suffer an injury in fact, (ii) that the injury likely was caused or will be caused by the defendant, and (iii) that the injury likely would be redressed by the requested judicial relief,” the ruling states.

The Supreme Court ruled that the plaintiffs did not demonstrate these points, although it recognized that “many citizens, including the plaintiff doctors here, have sincere concerns about and objections to others using mifepristone and obtaining abortions.”

The ruling — which includes a concurring opinion by Clarence Thomas, perhaps the most right-leaning justice on the bench — can also be seen as a victory for the FDA and its autonomy to decide what drugs to approve for general use. It can also be seen as a brake on the current trend of the Supreme Court — the most conservative since the 1930s — to undermine the power of federal agencies. This was seen last year when the court ruled against the Environmental Protection Agency (EPA).

The mifepristone case — known as FDA v. Alliance for Hippocratic Medicine (AHM) — stems from a lawsuit filed in November 2022 against the FDA. AHM chose to launch its legal battle in Amarillo, Texas, confident that the ultra-conservative Christian judge, Matthew Kacsmaryk, would handle the case and that his decision would be reviewed by an appeals court, the Fifth Circuit, which also has a history of favoring its interests.

The plaintiffs’ initial goal was to prohibit full access to mifepristone, which, along with misoprostol, is used in a growing number of pregnancy terminations, a percentage that increased after Roe was overturned. The first drug stops the production of progesterone and interrupts gestation; the second causes contractions in the patient and provokes the expulsion of the fetus.

Five million women

The FDA, which approved the use of mifepristone more than 20 years ago, estimates that more than five million women have used it since then, and that no negative side effects have been reported beyond those seen in common drugs, such as ibuprofen.

Kacsmaryk fully supported the plaintiffs in Amarillo, but the Fifth Circuit Court of Appeals, which has jurisdiction over Texas, Louisiana and Mississippi, only agreed with part of their argument that blamed the FDA’s 2016 and 2021 decisions — which expanded access to the abortion pill by allowing prescriptions to be given in telehealth consultations and the drug to be sent in the mail — for an alleged increase in problems stemming from that more widespread use.

Since the end of Roe v. Wade, at least 21 states have banned or severely restricted abortion rights. In those states, which cover roughly half the country and now the entire U.S. South, women have been turning to mifepristone to save themselves the long and costly trips to states where access to abortion is not restricted.

The anti-abortion movement has shown no signs that it will give up on its campaign to get mifepristone and misoprostol banned. The latest effort was seen in Louisiana, a state that is seeking to have the drugs legally designated as controlled and dangerous substances. The goal is for the abortion pills to end up on the same list as fentanyl or cocaine. In Louisiana, it is already illegal to use the drugs for an abortion; but if the rule succeeds, possession will also be illegal, carrying possible fines or prison sentences of up to five years.

Before the end of June, the Supreme Court is also set to hear another case that affects abortion rights. The case is Idaho v. United States, in which the justices must decide whether a federal law, EMTALA — which establishes the duties and powers of emergency physicians — prevails over the anti-abortion rule of Idaho, which has one of the toughest laws in the country. According to critics, Idaho’s strict rules put physicians and nurse in an impossible situation when it comes to helping a pregnant patient whose life is at risk. If they perform an abortion to save the patient, they risk losing their license or even ending up in jail. But if they do not help her, they are violating EMTALA, which obliges hospitals offering emergency services to intervene if the woman’s health is at stake.

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