The U.S. Supreme Court rejected a bid by anti-abortion groups and doctors to restrict access to the abortion pill, handing a victory on Thursday to President Joe Biden’s administration in its efforts to preserve broad access to the drug.
The justices, two years after ending the recognition of a constitutional right to abortion, ruled 9-0 to overturn a lower court’s decision to roll back Food and Drug Administration (FDA) steps in 2016 and 2021 that eased how the drug, called mifepristone, is prescribed and distributed.
The pill, given FDA regulatory approval in 2000, is used in more than 60 per cent of U.S. abortions.
The court ruled that the plaintiffs behind the lawsuit challenging mifepristone lacked the necessary legal standing to pursue the case, which required that they show they have been harmed in a way that can be traced to the FDA.
White House will welcome the ruling, CBC’s Richard Madan explains, but there is another case as well as other legislation seeking to restrict abortion access.
“Under Article III of the Constitution, a plaintiff’s desire to make a drug less available for others does not establish standing to sue,” Justice Brett Kavanaugh wrote.
The plaintiffs targeted FDA regulatory actions in 2016 and 2021, including allowing for medication abortions at up to 10 weeks of pregnancy instead of seven, and for mail delivery of the drug without a woman first seeing a clinician in person. The suit initially had sought to reverse FDA approval of mifepristone, but that aspect was rebuffed by a lower court.
The Guttmacher Institute, an abortion rights advocacy group, said in a statement that “this case never should have reached our nation’s top court in the first place.”
“We are relieved by this outcome, but we are not celebrating,” the organization said. “From the start, this case was rooted in bad faith and lacking in any basis in facts or science.”
Another abortion-related opinion looms
The case represents another front in the intensifying battle over abortion rights in the United States. The Supreme Court, which has a 6-3 conservative majority, in 2022 overturned its 1973 Roe v. Wade precedent that had legalized abortion nationwide.
In the 14 states that have since banned abortion with extremely limited exceptions, medical providers cannot prescribe or dispense mifepristone under state law. Patients in those states may continue to take the legal risk of ordering the pills online from outside the state, or they can travel out-of-state to legally obtain the pills.
Biden, seeking a second term in office in the Nov. 5 U.S. election, is an outspoken advocate for abortion rights. He and his fellow Democrats have sought to make abortion rights a central theme of the upcoming election, contrasting themselves with increasingly restrictive Republican positions on abortion, including some that don’t consider rape or incest mitigating factors.
Biden said the ruling “does not change the fact that the fight for reproductive freedom continues.”
“It does not change the fact that the Supreme Court overturned Roe v. Wade two years ago, and women lost a fundamental freedom,” he said. “It does not change the fact that the right for a woman to get the treatment she needs is imperiled if not impossible in many states.”
Mifepristone is taken with another drug called misoprostol to perform medication abortions. The FDA has said that after decades of use by millions of women in the United States and around the world, mifepristone has proven “extremely safe,” and that studies have demonstrated that “serious adverse events are exceedingly rare.”
The plaintiffs, led by the Alliance for Hippocratic Medicine, argued that the FDA acted contrary to its mandate to ensure medications are safe when it eased the restrictions on mifepristone. The plaintiffs accused the FDA of violating a federal law governing the actions of regulatory agencies.
U.S. District Judge Matthew Kacsmaryk broadly sided with the plaintiffs in a 2023 decision that would have effectively pulled the pill off the market.
After the administration appealed, the New Orleans-based Fifth U.S. Circuit Court of Appeals did not go as far as Kacsmaryk but still ruled against the FDA’s decisions in 2016 and 2021 widening access to the pill. Cases from the Fifth Circuit have represented an increasing share of the Supreme Court’s workload in recent years, with several rulings reversed last year.
The court is also expected to rule by the end of June on the legality of Idaho’s strict Republican-backed abortion ban that forbids terminating a pregnancy even if necessary to protect the health of a pregnant woman facing a medical emergency.
U.S. Supreme Court justices heard arguments in a case that could limit access to the commonly used abortion drug mifepristone. Since the pandemic, more doctors have dispensed the drug through telemedicine but anti-abortion activists want that stopped.
Plaintiffs lack standing to sue, court says
The plaintiffs had argued that they had proper legal standing to sue because their member doctors would be forced to violate their consciences due to “often be called upon to treat abortion-drug complications” in emergency settings as a result of what they called the FDA’s unlawful actions.
The Justice Department said that these claimed harms relied on an impermissibly speculative chain of events — that other doctors would provide mifepristone to women who then experience a rare emergency and end up in the medical care of these plaintiffs. Nor can the plaintiffs who chose to practise emergency medicine claim to be injured “whenever they are presented with patients in need of care,” it added.
Read the court opinion, written by Justice Brett Kavanaugh: