The United States Supreme Court heard arguments this Tuesday about mifepristone, a drug used in pill-based abortions, and most justices appeared reluctant to curb its use. This case marks the highest-profile abortion dispute at the court since it overturned Roe v. Wade in 2022.
Despite holding a conservative majority and having been the body that removed federal protections for abortion nearly two years ago, today the court signaled doubts about whether the antiabortion medical group Alliance for Hippocratic Medicine has proven the kind of harm that would allow lawsuits under the health system.
During the nearly two hours of oral arguments, the government and GenBioPro, the drugmaker, stressed the safety of mifepristone and rejected the alliance’s assertion that the drug is dangerous. A view rejected by multiple studies showing the medication, which is used in the majority of abortions in the United States, is safe.
The justices, whose ruling is expected by late June or early July, are considering whether the regulatory changes made by the Food and Drug Administration in 2016 and 2021 were legal. Those changes allowed the drug to be mailed to patients and prescribed by a health care provider who need not be a physician.
Justice Samuel Alito, who authored the 2022 opinion that struck down Roe v. Wade, was among those expressing skepticism about the Biden administration’s argument that doctors do not have the legal right or standing to sue. “Is there anyone who can sue and obtain a ruling on whether what the FDA did was legal? Maybe what they did was perfectly legal. But shouldn’t someone be able to challenge that in court?” asked the conservative jurist.
But more than a few justices voiced doubts. Conservative Justice Neil M. Gorsuch described the case as “an excellent example of how what could be a simple suit becomes a full-blown legislative exercise” in a nationwide debate over FDA approval.
Why is this case so consequential?
Nearly two years have passed since the Supreme Court ended Roe v. Wade, halting nationwide abortion protections. Since then, many states have tightened or banned abortion, and millions of women have turned to telemedical abortion, receiving pills by mail and being treated remotely by physicians.
A ruling restricting mifepristone would affect abortion providers across states, including those where abortion remains legal. It would complicate the process by which women are issued abortion pills remotely and attended by doctors via telemedicine.
Such a decision could also question the FDA’s authority to approve and distribute other medications.
This litigation began in November 2022 when a coalition of physicians and antiabortion medical organizations filed suit against the FDA.
The coalition filed the challenge in Amarillo, Texas, where Judge Matthew J. Kacsmaryk, appointed by former President Donald Trump and openly opposed to abortion, issued a preliminary ruling invalidating the drug’s approval and pulling the pill from the market.
In August 2023, three judges from the Fifth Circuit Court of Appeals, one of the country’s more conservative appellate panels, ruled that mifepristone should remain legal but imposed substantial access restrictions that are still under debate pending the Supreme Court’s decision.
What is mifepristone?
Mifepristone is one of two medications used in a medication abortion and is combined with misoprostol to terminate a pregnancy.
It blocks the hormone progesterone, which is essential for maintaining pregnancy, while misoprostol triggers uterine contractions, causing the body to expel the embryo.
Numerous studies indicate that this drug combination completes the abortion in more than 99 percent of patients.
Planned Parenthood reminded the public in a Tuesday statement that mifepristone is safe and effective with or without a visit to a health center, and has been used by more than five million people in the United States over the past 23 years.