Thu. Jul 18th, 2024

The Supreme Court on Thursday unanimously rejected a challenge to curtail access to the commonly-used abortion pill mifepristone, with the Justices finding that a group of anti-abortion doctors and organizations had no legal basis to challenge the Food and Drug Administration’s approval of the medication.

As a result, the lawsuit has been dismissed and the abortion pill can remain widely available. “Because plaintiffs do not prescribe or use mifepristone, plaintiffs are unregulated parties who seek to challenge FDA’s regulation of others,” Justice Brett Kavanaugh wrote in the unanimous decision.

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The case centered on the accessibility of mifepristone, the only drug approved specifically for terminating pregnancies, and whether the government applied a lawful review process of the drug when it first came out. The Supreme Court decided to hear the case after a lower court in 2023 revoked the FDA’s 23-year-old approval of mifepristone, a move that would restrict how the pill is delivered and distributed.

The restrictions, if allowed to go into effect, included cutting off access to the pill through the mail, barring telemedicine prescriptions, and reinstating a seven-week limit on its use—even in states where abortion remains legal.

Medication abortion has become an increasingly common and safe method for terminating pregnancies; more than five million women in the U.S. have used mifepristone for abortions since its approval, and six in 10 abortions last year were performed through medication, up from 53% in 2020, research published in March 2024 from the Guttmacher Institute shows.

Although dozens of countries have approved mifepristone for use, including the U.S., its safety has come under scrutiny after the fall of Roe v. Wade. The plaintiffs in the case—led by a group of anti-abortion doctors and organizations—argued that the FDA did not adequately study the safety risks of the drug before approving it for sale in 2000, claiming that doctors have had to treat patients who suffered from complications from mifepristone.

The Justices, however, said that the doctors did not suffer the type of direct harm that would give them legal grounds to bring the lawsuit. The FDA has also countered safety concerns about mifepristone, pointing to data documenting the drug’s efficacy and safety, ​​terminating pregnancies successfully  99.6% of the time with a complication rate lower than Tylenol.

“The plaintiffs have sincere legal, moral, ideological, and policy objections to elective abortion and to FDA’s relaxed regulation of mifepristone,” Kavanaugh wrote in the ruling. But “those kinds of objections alone do not establish a justiciable case or controversy in federal court.”

In their ruling, the Justices did not address the plaintiffs’ claim that the FDA’s approval of mifepristone and subsequent modifications to allow mail delivery violated a rarely used, anti-obscenity law known as the Comstock Act of 1873, which governs how the U.S. Postal Service handles the delivery of contraception and items considered “obscene.” Justices Samuel Alito and Clarence Thomas repeatedly invoked the Comstock Act during oral arguments. “This is a prominent provision. It’s not some obscure subsection of a complicated, obscure law,” Alito said. “Everybody in this field knew about it.”

The ruling marks the first time that the Justices have considered efforts to restrict abortion since their 2022 decision to eliminate the constitutional right to an abortion. Following that ruling, 14 states completely banned abortion—including medication abortion—and six states began requiring patients to see their physicians in person before getting prescriptions for abortion pills.

The issue has become a rallying point for Democrats, and polls show that the Supreme Court’s decision to overturn the constitutional right to an abortion in 2022 was met with disapproval by a majority of Americans.


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