The Supreme Court’s ruling on mifepristone isn’t the last word on the abortion pill
The High Council Thursday’s ruling on technical grounds keeps the abortion pill mifepristone available in the US for now, but it won’t be the last word on the issue, and the unanimous opinion offers some clues as to how abortion opponents may continue to try to deny it to women across the country.
Some attorneys general have indicated they will proceed, though they have not spelled out exactly how.
And while the ruling says the anti-abortion doctors who filed the lawsuit failed to show that they suffered harm when others used the drug, that might not stop another plaintiff from filing a successful lawsuit to strain.
“It’s a good decision that the doctors don’t have status,” said Dr. Rebecca Gomperts, director of Aid Access, an abortion pill supplier that works with U.S. providers. “The problem is that the decision should have said that no one has legal standing in this case – that only the women have rights.”
Justice Brett Kavanaugh’s opinion even provides a road map for people with “genuine concerns and objections to others’ use of mifepristone and obtaining abortions.”
“Citizens and physicians who object to what the law allows others to do can always take their concerns to the executive and legislative branches and demand greater regulatory or legal restrictions on certain activities,” he wrote.
That route would be more likely to work for them if Republican Donald Trump is elected president in November than if Joe Biden remains in office.
The Alliance for Hippocratic Medicine sued the Food and Drug Administration in 2022, a few months after the Supreme Court overturned Roe v. Wade and ended the right to abortion nationwide. Most Republican Party-controlled states had introduced new bans or restrictions on abortion by then. The anti-abortion doctors asked for a ruling that would apply nationwide and asked judges to find that the FDA improperly approved and facilitated access to mifepristone.
A federal judge in Texas and the New Orleans-based U.S. 5th Circuit Court of Appeals validated many of the group’s arguments, making some Democratic-controlled states nervous enough to supply of abortion pills.
Most medication abortions use a combination of mifepristone, which is also used in medications cause a miscarriage, and another, misoprostol. The latter medication can also be used alone, but women are more likely to suffer from side effects this way.
About half of abortions nationwide involved such pills before Roe was overturned. The drug was used last year almost two-thirds, as a study showed. Providers in some states use it telehealth appointments to prescribe and send them to women in states with bans or restrictions. Underground networks distribute them too.
After the doctors group filed suit, represented by Alliance Defending Freedom, a conservative Christian law firm, the Republican attorneys general of Idaho, Kansas and Missouri tried to get involved. They were allowed to enter the business U.S. District Judge Matthew Kacsmarykafter which the Supreme Court denied an intervening role.
David S. Cohen, a law professor at Drexel University who studies abortion law, said interveners such as the states would normally not be allowed to proceed if the main parties’ claims are rejected because they lack standing, but that is not yet clear. in this case, and the attorneys general are not backing down.
“We are moving forward undeterred with our lawsuits to protect both women and their unborn children,” Missouri Attorney General Andrew Bailey said on X.
When they tried to intervene, the attorneys general argued that allowing mifepristone would hinder their ability to enforce abortion bans in their states, and that taxpayers would have to pay emergency room bills if women who use it use get complications.
It’s not certain that the Supreme Court would accept such arguments as a reason to give states status, said Mary Ziegler, a historian at the University of California, Davis School of Law who studies abortion. “The court is suspicious of things that are speculative,” she said.
However, Ziegler said in a post on X Thursday: “One could read parts of this opinion as a road map for future plaintiffs.”
And she noted that the ruling makes no mention of the Comstock Act, a 19th-century federal moral law that conservatives have argued could be invoked to prevent abortion pills from being shipped across state lines. The Biden administration isn’t interpreting it that way — but someone else might. And if an opponent of abortion takes charge as U.S. Secretary of Health and Human Services, they could revoke or change the Food and Drug Administration’s approval for mifepristone.
Yet another approach could be for Republican states to challenge shield laws that seek to protect health care providers in some Democratic-controlled states when they prescribe pills to patients in states with abortion bans.
Jillian Phillips, a mother in North Brookfield, Massachusetts, who was taking mifepristone to help deal with the remains of a pregnancy when she suffered a miscarriage eight years ago, said it’s hard for her to see Thursday’s ruling as a victory for abortion rights. can lead to.
“My fear is always that as we take a step forward,” she said, abortion opponents “will become even more desperate to put up even more barriers and restrict things even further.”
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Associated Press reporters Kimberlee Kruesi in Nashville, Tennessee, and Laura Ungar in Louisville, Kentucky, contributed to this article.