Supreme Court Allows Continued Access to Abortion Pills … For Now

An abortion-rights rally outside the Supreme Court as the justices of the court hear oral arguments in the case of the U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine on March 26, 2024. (Anna Moneymaker / Getty Images)

Reproductive rights advocates breathed a sigh of relief on Thursday after the U.S. Supreme Court dismissed a lawsuit attempting to restrict access to the abortion pill mifepristone and telehealth abortion nationwide.

In Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, a unanimous Court ruled the anti-abortion plaintiffs did not have legal standing to bring the lawsuit because they were not harmed by the FDA’s loosening of restrictions on mifepristone over the last eight years.

“This decision is good news for women across the country, but unfortunately it won’t be the last time mifepristone is the target of the far-right’s crusade against this pillar of reproductive freedom,” said Sen. Ron Wyden (D-Ore.), a long-term advocate of abortion pills. “The Supreme Court dismissed this bogus case on standing, not whether or not mifepristone should remain on the market altogether. The next case extremists bring before the Court will undoubtedly be more airtight and pose an even bigger threat to mifepristone access nationwide.”

The anti-abortion medical providers who brought the case argued they had a right to challenge the FDA approval of mifepristone based on the speculative claim that they were injured because they may someday have to treat someone who has used FDA-approved mifepristone. The Court ruled that this was not enough to challenge the FDA’s regulation of a drug.

The Court did not address the merits of the case, including whether the FDA had adequate scientific support for loosening restrictions on mifepristone in 2016 and 2021 and whether allowing telemedicine abortion and mailing of abortion pills violated a nineteenth-century anti-obscenity law called the Comstock Act.

More than 100 studies have shown mifepristone is safe—safer, in fact, than Tylenol. In the 23 years since FDA approval of the medication, approximately 5.9 million women have used mifepristone with very few complications. Across the world, many millions of women have used mifepristone in at least 96 countries that have approved the drug.

In the United States, 63 percent of abortions in 2023 were done with medications—up from 31 percent in 2014. One in five of all abortions in the formal medical system are now done through telehealth and mailed abortion pills.

Demonstrators march towards the U.S. Capitol and Supreme Court during the “Bans Off Our Mifepristone” action on March 26, 2024. (Jemal Countess / Getty Images for Women’s March)

The FDA’s removal of medically unnecessary barriers to abortion pills, including allowing telemedicine abortion, has expanded access to abortion in the U.S.

Despite the overturn of Roe v. Wade, and 14 states entirely banning abortion, the number of abortions in 2023 rose significantly from previous years. There were 1,037,190 abortions in the U.S. in 2023, the highest rate since 2012, reports the Guttmacher Institute.

This number does not include shield state providers mailing pills to people in states with bans (over 10,000 people each month) or the number of abortions achieved using pills obtained outside of the medical system through alternative supply networks, so the actual number of abortions and the percent of abortions done with pills is likely much higher.

The Case Is Not Over

Recognizing the tenuous nature of the plaintiffs’ standing in Alliance for Hippocratic Medicine v. FDA, three anti-abortion state attorneys general from Idaho, Kansas and Missouri last year filed a motion to join the case as plaintiffs.  

On Jan. 12, the district court judge in the case, Matthew Kacsmaryk, granted the motion. Kacsmaryk is an anti-abortion activists appointed to the federal bench by Donald Trump. The case could continue if Kacsmaryk rules these new plaintiffs have standing to sue.

The next case extremists bring before the Court will undoubtedly be more airtight and pose an even bigger threat to mifepristone access nationwide.

Sen. Ron Wyden (D-Ore.)

The U.S. Department of Justice had asked the Supreme Court to make clear to the district court that the case should be dismissed or transferred to a different federal district court if the original plaintiffs lacked standing, but the Supreme Court declined to do this in its decision today.

“While this decision preserves access to medication abortion today, the reality is that the Court left the door wide open, even invited, future attacks on the mailing of mifepristone and abortion access more broadly,” said Sen. Tina Smith (D-Minn.), who promised to introduce a bill to repeal the Comstock Act in the coming days.

Despite losing the case for now, conservatives achieved their goal of creating chaos and misinformation about the safety and legality of abortion medications.

“Dismissing this case doesn’t reverse the damage that courts and anti-abortion extremists have already done,” said Jennifer Driver, senior director of reproductive rights at State Innovation Exchange (SiX). “For over a year, our judicial system has left people confused about what their options are when it comes to medication abortion, an incredibly safe and effective method for abortion care. While the Supreme Court did the bare minimum today, we know anti-abortion extremists aren’t stopping any time soon.”

At the state level, conservative legislators are trying to restrict access to abortion pills.

Louisiana recently enacted a law designating both mifepristone and misoprostol as controlled substances, and Arkansas is attempting to limit the provision of information to Arkansans about ways to obtain abortion pills in their state.

“No matter what the legislatures do, abortion pills will remain available in all 50 states,” said Elisa Wells, co-founder of Plan C Pills. “Alternative routes of access are here, safe, and incredibly effective, and we expect abortion-seekers nationwide to take more and more advantage of these options.”

For over a year, our judicial system has left people confused about what their options are when it comes to medication abortion, an incredibly safe and effective method for abortion care.

Jennifer Driver, State Innovation Exchange

In addition to legal challenges and state restrictions, anti-abortion extremists plan to work through the next Republican president to ban abortion pills nationwide. The Heritage Foundation has published a detailed agenda for the next conservative administration, called Project 2025, which includes directing the FDA to withdraw approval of mifepristone and misapplying the Comstock Act to ban the mailing abortion pills nationwide.

The fall 2024 elections are critical to maintaining abortion pills access. The president appoints the head of the FDA, who controls the status of mifepristone. A Trump administration could rescind the FDA’s recent expansions of access to abortion pills or even try to withdraw mifepristone from the market altogether.

Abortion supporters won this battle, but the war continues, including the impending SCOTUS decision inMoyle v. United States, which will determine whether critically ill pregnant women get the abortion care they need to preserve their health in states banning abortion.

Several organizations and resources exist for those seeking abortion pills and those in need of assistance:

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About

Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman professor of American Studies and the chair of the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at cbaker@msmagazine.com or follow her on Twitter @CarrieNBaker.