Supreme Court Keeps Full Access to Widely Used Abortion Pill (5)

The US Supreme Court preserved full access to a widely used abortion pill in a case that carried major stakes for reproductive rights and election-year politics.

The court unanimously overturned a federal appeals ruling that would have barred mail-order prescriptions for mifepristone, the drug now used in more than half of US abortions. The lower court ruling would have reduced abortion access even in states where reproductive rights have broad support.

The court stopped short of affirming <-bsp-bb-link state="{"bbHref":"bbg://securities/3400398Z%20US%20Equity","_id":"00000190-12db-d5f2-a594-d7ffe44e0000","_type":"0000016b-944a-dc2b-ab6b-d57ba1cc0000"}">Food and Drug Administration decisions to loosen restrictions on mifepristone starting in 2016. The majority instead said the anti-abortion doctors and organizations that sued lacked legal “standing” because they aren’t directly affected by the FDA’s actions.

“The federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions,” Justice Brett Kavanaugh wrote for the court. “The plaintiffs may present their concerns and objections to the president and FDA in the regulatory process, or to Congress and the president in the legislative process.”

The abortion ruling is the Supreme Court’s first since 2022, when it <-bsp-bb-link state="{"bbDocId":"RDZQC7T1UM0W","_id":"00000190-12db-d5f2-a594-d7ffe4540000","_type":"0000016b-944a-dc2b-ab6b-d57ba1cc0000"}">overturned the landmark Roe v. Wade decision and eliminated the constitutional right to end a pregnancy. The court separately will rule in the coming weeks on the ability of emergency-room doctors in states with strict bans to perform the procedure when a mother’s health is at risk.

Unlike with the 2022 decision, which left the court sharply divided, the court managed to coalesce around a procedural issue in the latest case.

The FDA expanded access to mifepristone with a series of steps that included a 2021 decision to permanently jettison the requirement that patients physically visit a medical provider. The FDA also extended the drug’s approval to the 10th week of pregnancy — three weeks longer than was the case previously — and reduced the dosing regimen from 600 milligrams to 200.

“We are pleased with the Supreme Court’s decision,” FDA Commissioner Robert Califf said in a post on the X social-media platform. “Under that decision, mifepristone remains available under the conditions of use approved by FDA.”

Lawyers for the doctors said they have the legal right to sue because they inevitably will have to treat women who are harmed by mifepristone and need emergency care.

Kavanaugh rejected that argument. “The law has never permitted doctors to challenge the government’s loosening of general public safety requirements simply because more individuals might then show up at emergency rooms or in doctors’ offices with follow-on injuries,” he wrote.

State Challenge

The ruling leaves open the possibility of a renewed attack on mifepristone by other opponents. After the Supreme Court agreed to take up the case, US District Judge <-bsp-person state="{"_id":"00000190-12db-d5f2-a594-d7ffe4580000","_type":"00000160-6f41-dae1-adf0-6ff519590003"}">Matthew Kacsmaryk said a Missouri-led group of states could intervene at the district court level to help press the challenge. The states contend they have standing to sue even if the doctors don’t.

The ruling was based on a “legal technicality,” said Erin Hawley, the Alliance Defending Freedom lawyer who argued the case against the FDA. It “allows the FDA continue its reckless disregard for women’s health, at least for now.”

President Joe Biden said in a statement that “attacks on medication abortion are part of Republican elected officials’ extreme and dangerous agenda to ban abortion nationwide.”

As part of the ruling, Kavanaugh said that federal law provides broad protections for doctors opposed to abortion. He said the suing doctors “have not shown that they could be forced to participate in an abortion or provide abortion-related medical treatment over their conscience objections.”

The 5th US Circuit Court of Appeals, perhaps the nation’s most conservative federal appeals court, said the FDA gave short shrift to safety concerns when it took those steps.

Kacsmaryk had gone even further by suspending the FDA’s 2000 approval and barring the drug altogether. The 5th Circuit said the challenge to the initial approval was filed too late.

‘Cherry Picking’

Fatima Goss Graves, president and CEO of the <-bsp-bb-link state="{"bbHref":"bbg://securities/7539460Z%20US%20Equity","_id":"00000190-12db-d5f2-a594-d7ffe45c0002","_type":"0000016b-944a-dc2b-ab6b-d57ba1cc0000"}">National Women’s Law Center, said in a statement that the case was the result of extremist groups “cherry picking judges who will do their bidding.”

“We also know that this may be a temporary reprieve, as other opponents of abortion are waiting in the wings to bring another challenge to mifepristone,” she said. “We will never stop fighting for what is right and for a future where we, not the courts or anti-abortion extremists, control our own bodies, lives, and futures.”

The Supreme Court issued an emergency order last year keeping mifepristone fully available until it resolved the case. Conservative Justices Clarence Thomas and Samuel Alito dissented from that order but joined the court’s opinion Thursday.

The case pitted the Biden administration against Alliance Defending Freedom, a Christian legal group that helped drive the effort to overturn Roe. The drug’s manufacturer, <-bsp-bb-link state="{"bbHref":"bbg://securities/0855747D%20US%20Equity","_id":"00000190-12db-d5f2-a594-d7ffe4600000","_type":"0000016b-944a-dc2b-ab6b-d57ba1cc0000"}">Danco Laboratories LLC, defended mifepristone alongside the administration.

“By rejecting the Fifth Circuit’s radical, unprecedented and unsupportable interpretation of who has standing to sue, the justices reaffirmed longstanding basic principles of administrative law,” Danco said in a statement. “In doing so, they maintained the stability of the FDA drug approval process, which is based on the agency’s expertise and on which patients, health-care providers and the US pharmaceutical industry rely.”

Mifepristone is used as part of a two-pill regimen to end pregnancies and treat miscarriages. It is followed by misoprostol, which can also be used on its own to terminate a pregnancy.

The cases are Food and Drug Administration v. Alliance for Hippocratic Medicine, 23-235, and Danco Laboratories v. Alliance for Hippocratic Medicine, 23-236.

(Updates with FDA statement posted on X.)

--With assistance from <-bsp-person state="{"_id":"00000190-12db-d5f2-a594-d7ffe4640000","_type":"00000160-6f41-dae1-adf0-6ff519590003"}">Fiona Rutherford, <-bsp-person state="{"_id":"00000190-12db-d5f2-a594-d7ffe4640002","_type":"00000160-6f41-dae1-adf0-6ff519590003"}">Ella Ceron and <-bsp-person state="{"_id":"00000190-12db-d5f2-a594-d7ffe4640004","_type":"00000160-6f41-dae1-adf0-6ff519590003"}">Madlin Mekelburg.

To contact the reporters on this story:
Greg Stohr in Washington at gstohr@bloomberg.net;
Erik Larson in New York at elarson4@bloomberg.net

To contact the editors responsible for this story:
<-bsp-person state="{"_id":"00000190-12db-d5f2-a594-d7ffe46c0000","_type":"00000160-6f41-dae1-adf0-6ff519590003"}">Elizabeth Wasserman at ewasserman2@bloomberg.net

Sara Forden

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