The Supreme Court on Wednesday granted a request by the Department of Justice and the abortion pill maker Danco Laboratories to review a Fifth Circuit Court decision drastically limiting access to the abortion pill mifepristone.
At the same time, the Supreme Court denied a request by the anti-abortion group Alliance for Hippocratic Medicine to reinstate a Texas district court decision staying the 2000 approval of mifepristone. The decision to deny the anti-abortion appeal means that mifepristone will remain on the market and is not currently at risk of losing its full FDA approval, no matter what happens with the Supreme Court’s consideration of the restrictions imposed by the Fifth Circuit.
The Court agreed to review two issues: standing for the challengers, and the 2016 and 2021 changes in restrictions.
“They can ultimately review anything they want in the case before them,” said legal expert David Cohen. “But, what they did this morning is a VERY STRONG indication that the original approval of mifepristone is safe … for now.”
Even still, a decision to maintain the ruling in question from the Fifth Circuit Court of Appeals would mean that mifepristone would no longer be available by telemedicine—an increasingly important avenue for accessing abortion, particularly for people living far from abortion clinics or in states banning abortion clinics. Without telehealth services, abortion seekers will be forced to go to clinics and doctors’ offices to receive the medication, exposing them to harassment, threats and other types of violence from anti-abortion extremists, which has dramatically increased since the fall of Roe.
It would also restrict who can distribute mifepristone. Before 2016, only physicians could prescribe and dispense mifepristone, greatly limiting the number of healthcare providers offering abortion services. In 2016, the FDA expanded the eligibility for prescribers, allowing any qualified healthcare provider to prescribe and dispense mifepristone. (If the Supreme Court upholds the Fifth Circuit decision, healthcare providers could still provide telemedicine abortion by prescribing misoprostol alone, which is still very safe and effective—but some may not be willing, since a combination of mifepristone with misoprostol is the gold standard of care.)
The Court will also be reviewing a FDA change in the label, which recommended that mifepristone can be used through 10 weeks of pregnancy and at a dose of 200 mcg. The pre-2016 recommendation was a 600-mcg dose through seven weeks of pregnancy. The higher dosage is unnecessary and harder to tolerate. (Healthcare providers could still prescribe the medication at a lower dosage and later in pregnancy off label.)
“In short, the legality of mifepristone shouldn’t be at risk, but access and availability of the medication is,” wrote Jessica Valenti of Abortion, Every Day.
The case will be heard this term, with a decision likely by summer—just months before the next election, where voters will decide on the next U.S. president and who will represent them in Congress.
“The Supreme Court could decide the case on the narrow ground that those challenging the FDA’s action don’t have standing (because they don’t have a sufficiently concrete injury), or the justices could rule more broadly about the agency’s discretion on matters within its jurisdiction and expertise,” said John Culhane, professor of law at Widener University Delaware Law School. “Whichever way the Court rules, though, the decision is sure to receive extensive coverage, as the 2024 election season will be in full swing by then.”
Mifepristone has been safely used by over 5 million women in the United States over the last 23 years, and today is used in more than half of all abortions in the U.S. Across the world, at least 94 countries have approved the drug to some degree, according to Gynuity Health Projects.
While the Supreme Court considers the case, the medication will remain available as it has been.
Some reproductive rights advocates welcomed the announcement, including Kiki Freedman, co-founder and CEO of virtual abortion clinic Hey Jane. “We are glad the U.S. Supreme Court has decided to review the Fifth Circuit’s order restricting access to mifepristone, opening the door to reverse this baseless ruling. From the moment this litigation was first filed, it was designed to cause confusion. It’s imperative the facts are repeated. Mifepristone is safe, mifepristone is effective, and mifepristone is still FDA-approved.”
But other reproductive rights activists remain wary of the outcome. “We hope that the justices will uphold the scientific authority of the Food and Drug Administration in this baseless case, though the current makeup of the court—and its failure in the Dobbs case to uphold abortion rights—does not bode well for a good outcome,” according to a statement from Plan C, an information resource for self-managed, at-home abortion with pills.
They continued, “Even if the SCOTUS decision results in restrictions on mifepristone, both mifepristone and misoprostol will remain available through alternate delivery systems in the United States. This includes a robust alternate supply network of abortion pills from both online vendors who ship generic abortion pills for as little as $42 with 3-day shipping, as well as activist volunteers who mail free generic abortion pills to people in restricted states who can’t afford other options.”
Several organizations and resources exist for those seeking abortion pills and those in need of assistance:
- To find providers who mail pills to all states, visit plancpills.org or ineedana.com.
- To find verified abortion care, use AbortionFinder.org.
- To access medical support, visit the M+A Hotline.
- To access peer support, head to Reprocare.com.
- To access free, confidential legal services, visit or call the Repro Legal Helpline.
- For help finding the money for an abortion, people can ask the telehealth provider or reach out to a local abortion fund.
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