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The Supreme Court Will Review the Fate of Medication Abortion Care
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The Supreme Court Will Review the Fate of Medication Abortion Care

The same radical Supreme Court majority that eradicated the constitutional right to abortion will now review the approval of mifepristone.

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The U.S. Supreme Court building is seen with sunlight shining on it and a tree shadowing the foreground.
The U.S. Supreme Court is seen in Washington, D.C., on April 21, 2023. (Getty/Kent Nishimura)

Today, the Supreme Court confirmed that it will review the controversial case Alliance for Hippocratic Medicine v. Food and Drug Administration (FDA), which concerns potential restrictions on the use and availability of mifepristone in America and that first arose from litigation in Texas. Mifepristone is the first medicine in a two-step regimen approved for medication abortion care in the United States.

The stakes are high in Alliance for women in America. Medication abortion is the most common form of abortion care in the United States. The Supreme Court’s decision to eliminate the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, which left the question of abortion access to the states, resulted in mass confusion and chilling effects for both medical providers and patients seeking care. The use of medication abortion through telehealth has not just surged since the Dobbs decision but has also prevented the crisis from worsening. Any restrictions on access to mifepristone will result in even more harm across the country.

Protesters outside the Supreme Court (Getty).

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Decoding the recent Supreme Court update

Today’s update has three parts. First, the justices formally approved a request—submitted by the Biden administration and Danco (the brand manufacturer for mifepristone) in September 2023—for the case to be reviewed by the Supreme Court. Notably, the request limited the review to the decision from the 5th Circuit Court of Appeals, which rejected the challenge to the FDA’s initial approval of mifepristone but reimposed restrictions on the medication that existed before 2016. These previously lifted restrictions include requiring unnecessary medical trips to the doctor’s office and limits on the ability of patients to access medication abortion through telehealth and end their pregnancies in the privacy and comfort of their own homes. Second, the order also stated that Alliance was consolidated with another case, Danco Laboratories v. Alliance for Hippocratic Medicine. Third, the Justices simultaneously denied a cross-certification request from the plaintiffs—the anti-abortion organization that originally brought this case. This request asked in-part for the Supreme Court to review broader questions on approval and regulation, including the FDA’s initial approval of mifepristone in 2000.

Cumulatively, this means that the Supreme Court will schedule oral arguments, potentially as early as Spring 2024, and is predicted to render a final decision on the case potentially in Summer 2024. It also means that the Supreme Court will review previously imposed restrictions on mifepristone, which have been lifted after extensive FDA review as part of their extensive decision-making process and general medical consensus that such restrictions were unnecessary for a medication that has proven safe and effective after more than 20 years on the market.

However, the final ruling on this case will have far-reaching consequences that go beyond access to abortion for women throughout the country, even in states where abortion is legal. It marks an unprecedented attempt by far-right activists to commandeer the judiciary to threaten not only abortion access but also highlights the dangerous trend of judges upending legal precedent and bending legal norms, all seemingly in the pursuit of ideological goals.

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Any legal claim questioning the safety and efficacy of Mifepristone is meritless

The heart of the legal claims brought by far-right extremists ignore the long-established facts and wealth of evidence on the safety of mifepristone. In the more than two decades since the FDA first approved mifepristone, the agency has evaluated the drug at least four times with the same undisputed conclusion: Mifepristone is safe and effective. It is now considered one of the most examined medications in America. Additionally, the fact that it has been used effectively by more than 5 million women and accounts for the majority of abortion care in America highlights just how common and safe it is. Also, the FDA approval of the use of medication abortion by mail in 2021 has served as a critical lifeline for individuals who cannot afford or are unable to travel for clinical care, since mifepristone can be taken in the comfort of one’s home.

Pending the Supreme Court’s final decision, access to mifepristone remains unchanged

The availability of mifepristone remains the same as before litigation over the question of mifepristone’ approval officially began. It remains available in states where abortion is legal because Alliance is subject to a prior judicial order the Supreme Court issued in April 2023. The order, also known as a stay, effectively pauses any new restrictions on mifepristone until the court most likely makes a final decision on the case, potentially as early as Spring 2024. The stay ensures that the earlier court rulings from the U.S. District Court of Northern Texas and the 5th Circuit Court of Appeals—both of which attempted to restrict access to mifepristone in varying degrees on a preliminary or emergency basis—do not go into effect.

The stay’s preservation of medication abortion availability, particularly through mail, has kept the post-Roeabortion-access crisis from being even worse than it already is. Since this very Supreme Court majority eradicated the constitutional right to abortion, patients and health care professionals have been caught in in a confusing web of evolving challenges. This has had devastating impacts on pregnancy care, since mifepristone is used in the medication management of early pregnancy loss. As of this week, 14 states have in effect near-total abortion ban during any point in pregnancy, and seven states have implemented abortion bans with other limits as early as six weeks.

The impact of Alliance on medical professionals

To understand the impact of the changing abortion landscape on medical care, one must consider the realities that medical professionals face in trying to provide patient care in post-Roe America. The realities presented in a national survey of 569 OB-GYNs across the country highlight that the politicization of medicine has real—and sometimes fatal—consequences for women’s health:

  • “1 in 5 office-based OB-GYNs report they have personally felt constraints on their ability to provide care for miscarriages and other pregnancy-related medical emergencies since the Dobbs In states where abortion is banned, this share rises to 4 in 10 OB-GYNs.”
  • “68 percent of OB-GYNS surveyed say the ruling has worsened their ability to manage pregnancy-related emergencies. Large shares also believe that the Dobbs decision has worsened pregnancy-related mortality (64 percent); racial and ethnic inequities in maternal health (70 percent); and the ability to attract new OBGYNs to the field (55 percent).”

Alliance’s ascent to SCOTUS demonstrates how the politicization of the judiciary is hastening the politicization of medicine

It remains unprecedented for judges with no medical or scientific expertise to attempt to find a drug unsafe despite the approval of both the FDA and the drug manufacturer. Additionally, legal scholars across the spectrum of political ideologies have noted that basic legal norms, such as statute of limitations and legal standing, have been disregarded to an egregious extent by both the Northern District of Texas and the 5th U.S. Circuit Court of Appeals, implying a bias in favor of the plaintiffs—the far-right extremists that brought this case. Notably, all the federal judges that have reviewed Alliance have well-documented personal records opposing abortion. This again highlights the ongoing accusations that the plaintiffs have cherry-picked judges whose personal ideologies are well-documented and suggests that they may be more likely to find reason to rule in the plaintiffs’ favor. At all levels, the judges willingness to disregard medical standards and scientific expertise emphasizes that this is an egregious intrusion into medicine by a politicized judiciary that will hurt women.

Conclusion

The same extremist Supreme Court majority that upended legal precedent and eradicated the constitutional right to abortion in Dobbs will now be deciding the fate of mifepristone in the United States. The Supreme Court must choose the rule of law over personal ideology. The lives of countless vulnerable women alongside the future of prescription drug availability and the independence of the judiciary are all at stake in Alliance.

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Author

Sabrina Talukder

Director, Women’s Initiative

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Women’s Initiative

The Women’s Initiative develops robust, progressive policies and solutions to ensure all women can participate in the economy and live healthy, productive lives.

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This series explores recent court rulings on medication abortion and explains how they will affect Americans' access to abortion across the country and highlight the growing politicization of the judiciary.

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