The Supreme Court may decide the anti-abortion doctors do not have legal grounds to bring a lawsuit against the FDA—but “the Court does not always side with what is best for our communities,” said Dr. Jamila Perritt.
The Supreme Court heard oral arguments on Tuesday in the first abortion-related case since the Court overturned Roe v. Wade. In the case, the Department of Justice and the abortion pill maker Danco Laboratories asked the Court to reverse a Fifth Circuit decision that, if upheld, would drastically limit access to the abortion pill mifepristone. Anti-abortion group Alliance for Hippocratic Medicine, who brought the suit, urged that the Fifth Circuit decision be upheld, and disputed FDA actions in 2016 and 2021 that loosened restrictions on mifepristone.
The Court will issue its ruling by the summer—just months before the fall election, when voters will decide on the next U.S. president and who will represent them in Congress.
Ahead of Tuesday, feminists and reproductive rights advocates warned that an adverse decision from the same Court that overturned the constitutional right to abortion would impact access nationwide. After all, access to abortion medication is more urgent than ever in a post-Roe landscape, where abortion is currently banned in 14 states and severely restricted in several others.
During oral arguments, the DOJ and Danco emphasized the safety of mifepristone, but also focused much of their arguments on standing—whether or not the anti-abortion doctors and dentists challenging the FDA’s regulations have sufficient legal grounds to bring the lawsuit. Jessica Ellsworth, the lawyer representing Danco, characterized the anti-abortion plaintiffs as “individuals who do not use this product, do not prescribe this product, and have a conscience right not to treat anyone who has taken this product.”
If the Court agrees—deciding the plaintiffs do not have standing to sue—it could dismiss the case altogether. And a majority of justices did sound skeptical of both standing and claims that medication abortion is not safe. Dr. Jamila Perritt, president and CEO of Physicians for Reproductive Health, countered: “We know that the FDA approved mifepristone and continued to update its recommendations for mifepristone’s use based on careful review of the decades of scientific and medical research on mifepristone’s safety and efficacy.”
But Perritt followed up with a warning: “While we were heartened to hear some arguments rooted in the facts we know about medication abortion, we know that the Court does not always side with what is best for our communities.”
If the Court decides to uphold the Fifth Circuit decision:
- Mifepristone will not lose its full FDA approval, but mifepristone would no longer be available by telemedicine—an important avenue for anyone in need of abortion, but especially for those living far from a clinic or in states banning abortion. Without telehealth, 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 anti-abortion violence, which has dramatically increased since the fall of Roe.
- It would restrict who can distribute mifepristone. Before 2016, only physicians could prescribe and dispense mifepristone. In 2016, the FDA expanded the eligibility for prescribers, allowing any qualified healthcare provider to provide mifepristone.
- Healthcare providers could still offer 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.
Such a ruling “would inflict grave harm on women across the nation,” said solicitor general Elizabeth Prelogar, arguing for the FDA.
Medication abortion typically involves taking two different pills—mifepristone and misoprostol—and is authorized up to 10 weeks of pregnancy by the FDA and up to 12 weeks by the World Health Organization. The procedure successfully terminates a pregnancy 99.6 percent of the time, with a 0.4 percent risk of major complications, and a mortality rate of less than 0.001 percent, according to the FDA. Similarly, the American College of Obstetricians and Gynecologists has found that “major adverse events—significant infection, excessive blood loss, or hospitalization” occur in less than 0.32 percent of patients.
Still, the anti-abortion plaintiffs argued that abortion pills are dangerous to women and girls, citing five studies—two of which were retracted last month for incorrect facts and data; another two cited results from mifepristone usage beyond 12 weeks, which is not recommended; and the final cited study’s author said his team’s work was misinterpreted.
In addition to its safety, abortion at-home with medication is more convenient and private than procedural abortions. Perhaps unsurprisingly, abortion pills are increasingly the preferred way to terminate a pregnancy for most Americans: Sixty-three percent of all abortions in 2023 were medication abortions—up from 53 percent in 2020 and 39 percent in 2017.
The fall of Roe hasn’t stopped abortion-seekers from accessing abortion pills: There were about 26,000 more self-managed medication abortions than expected in the six months after Roe v. Wade was overturned.
Mifepristone is already available in our communities and people are self-managing their abortions with it. This is what we’ve been doing and we will keep doing because we do not receive our healthcare from the courts.
Renee Bracey Sherman, We Testify
Support for abortion pills is widespread.
- A majority of voters think the U.S. should continue allowing abortion medication to be sent by mail, including a majority of Democrats and Independents, according to a new Data for Progress survey.
- A majority of Americans—55 percent—believe mifepristone should remain legal, including 75 percent of Democrats, 51 percent of independents, and 33 percent of Republicans, according to a Navigator Research poll released Tuesday.
- Sixty-four percent of Americans support “allowing women to legally use prescription abortion medication to end an early pregnancy at home,” the same poll showed.
“People want more access to abortion care, not less, because abortion gives us control over our futures,” said Kimberly Inez McGuire, executive director of URGE: Unite for Reproductive & Gender Equity, “where we can live with justice, love freely, express gender and sexuality, and define and create families of our choosing.”
The drug mifepristone is widely used for abortion, but is also highly effective at treating incomplete miscarriages, as well as fibroids (non-cancerous growths of the uterus that can cause heavy periods, severe pain and difficulty conceiving). Attacks on abortion access and on the abortion pill mifepristone—like the case in front of the Court on Tuesday—can have a chilling effect on reproductive healthcare access writ large, creating a culture of confusion and fear among patients and providers.
“While either outcome of these cases will not ban the use and production of mifepristone, the implications on availability of and access to the medication could be disastrous,” Abortion Action Missouri warned in a statement. “Attacks on abortion have a rippling effect throughout medicine—restricting access to mifepristone will provoke devastation even beyond people seeking abortion care and/or experiencing miscarriage.”
A ruling in favor of the Alliance for Hippocratic Medicine would also set a dangerous precedent for challenging government agency decisions, as well as other FDA-approved medications.
- “This Court should think hard about the mischief it would invite if it allowed agencies to start taking action based on statutory responsibilities that Congress has assigned to other agencies,” Ellsworth warned.
- Evan Masingill, CEO of GenBioPro, the nation’s only generic manufacturer of mifepristone, echoed this sentiment: “The repercussions of this case go far beyond mifepristone—it could stifle pharmaceutical innovation, upend the FDA’s drug approval process, and put other approved medications at risk.”
- “The consequences of substituting scientific expertise with far-right extremism are incredibly dangerous to millions of women, to our public health, and should be concerning for anyone and everyone in America who rely on medication that might someday be restricted by the dangerous precedent that the extremists have asked the Supreme Court to set,” said Democracy Forward president and CEO Skye Perryman, who serves as counsel for GenBioPro in a separate lawsuit in West Virginia challenging a state ban that restricts access to mifepristone.
Reproductive health advocates have long warned that attacks on mifepristone are just the latest in a long-game strategy of ending abortion access in the U.S., full stop, as well as access to contraception and IVF.
- Just last week, the Republican Study Committee—which represents 100 percent of House Republican leadership and almost 80 percent of their members—released a budget that attacks reproductive healthcare, including endorsing a national abortion ban with zero exceptions for rape or incest, threatening IVF by arguing life begins at conception, and reducing funding for contraception.
- “Anti-abortion activists’ endgame was never just to overturn Roe—it was always to ban all abortions nationwide,” said Kelly Baden, vice president for public policy at the Guttmacher Institute. “Restricting medication abortion helps them get to that goal.”
- “If the Supreme Court refuses to follow the evidence and imposes medically unnecessary restrictions on mifepristone, it will be just another stepping stone in the anti-abortion movement’s end goal of a nationwide ban on abortion,” said Destiny Lopez, Guttmacher’s acting co-CEO.
- “This is all coordinated and intentional,” said Mallory Schwarz, executive director of Abortion Action Missouri, “from the Hawleys to the highest Court, this is all a part of the anti-abortion movement’s plan to ban abortion nationwide. Anti-abortion extremists are using the courts as political actors to push their anti-abortion, anti-science, anti-LGBTQ+, anti-women and anti-democracy agenda.” (Erin Hawley, wife of Republican Sen. Josh Hawley of Missouri, presented the arguments for anti-abortion group Alliance for Hippocratic Medicine.)
And most Americans agree: More than three in five say that “suspending the FDA’s approval of prescription abortion medication to end early pregnancies at home is part of a broader agenda by Republican politicians to ban abortion nationwide.”
Anti-abortion activists’ endgame was never just to overturn Roe—it was always to ban all abortions nationwide. Restricting medication abortion helps them get to that goal.
Kelly Baden, Guttmacher Institute
While the country awaits a decision, abortion advocates emphasized that regardless of how the Court rules or state lawmakers legislate, people will access abortion pills.
“Regardless of the eventual decision, abortion pills will remain safe and effective medicines and will also remain available, either through FDA-approved routes such as clinics, pharmacies and the mail system, or through the many alternate avenues of access that have emerged in the United States in response to unjust bans,” according to a statement from Plan C, which maintains a database of how to access abortion pills in all 50 states. “These alternate access routes—including community support networks, new telehealth services, and online pill vendors—have already served tens of thousands of people since Dobbs and are poised to expand to meet demand.”
“Mifepristone is already available in our communities and people are self-managing their abortions with it. This is what we’ve been doing and we will keep doing because we do not receive our healthcare from the courts,” said Renee Bracey Sherman, founder and executive director of We Testify, a nonprofit that invests in abortion storytellers. “We will always support each other to have caring, supportive and safe abortions. We will always share our stories to change the conversation. Mifepristone and misoprostol are here to stay.”
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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