Supreme Court Tosses Abortion Medication Challenge

Earlier today the Supreme Court, in an unanimous decision authored by Brett Kavanaugh, tossed a lawsuit that was seeking to revoke the FDA approval of mifepristone, one of two drugs used in a medication abortion. Kavanaugh’s opinion made it clear that the plaintiffs in the lawsuit, a conservative medical organization and anti-choice OB-GYN’s, did not have standing to sue the FDA.

The case, known as The Alliance For Hippocratic Medicine v. Food and Drug Administration (FDA) had been filed in Amarillo by the conservative legal group Alliance Defending Freedom. By filing in Amarillo, the case was all but assured to be heard by the U.S. District Judge Matthew Kacsmaryk, who was appointed by President Trump.

Last year, Kacsmaryk issued a ruling that invalidated the FDA’s approval of mifepristone. That was immediately appealed and the Fifth Circuit blocked the ruling, while still leaving in place some restrictions on mifepristone. The Supreme Court ultimately intervened and nulled those decisions, leaving in place the current rules over distributing mifepristone. Now, with the case tossed, mifepristone remains legal, though many reproductive rights advocates note the threats to abortion pills remain on the horizon.

In a statement following the ruling, Planned Parenthood Texas Votes Senior Advisor Wendy Davis noted the meritless nature of the case. “The fact that this case made it to the Supreme Court in the first place is a travesty, and their decision should not be hailed as a dramatic victory,” she said. “Instead, it is the bare minimum we should expect from our highest court on a baseless case that was a calculated attack on the right to a proven and safe method of abortion care.” 

Many Republicans initially praised the ruling from Kacsmaryk regarding mifepristone, and hoped the Supreme Court would issue an opinion to restrict access to the medication. 145 Republican members of Congress and 26 Senators, including both Ted Cruz and John Cornyn, signed an amicus brief urging the Supreme Court to limit access to mifepristone.

The FDA approved mifepristone in 2000. It is safer than both penicillin and Viagra.

Earlier this year the Guttmacher Institute released a triannual report showing medication abortion accounted for 63 percent of all abortions in the United States, an increase from 53 percent three years earlier. That same report noted the sharp rise in telemedicine providers that can mail abortion pills throughout the country: which increased from 7 percent to 31 percent since 2020.

While many are lauding this specific ruling from the Supreme Court, reproductive rights advocates are still cautioning that mifepristone could remain in danger if Donald Trump returns to the White House after November’s election. He has closely aligned himself with several anti-choice advocates, including the architect of Senate Bill 8 in Texas, who believe that medication abortion could be restricted through legislative means like enforcing the Comstock Act. Using an anti-obscenity law from the nineteenth century could be a means of enacting a de facto national abortion ban.

Even in the actual Supreme Court opinion tossing the mifepristone challenge, Justice Kavanaugh provides a strategy for anti-choice groups to steer policy goals by other ways than the judiciary. Later this summer the Supreme Court is expected to weigh in on another abortion-related case: one that will determine what constitutes emergency care for pregnant patients.