The Supreme Court’s ruling on Thursday on a technicality ensures that the abortion pill mifepristone will remain available in the U.S. for now. But it will not be the last word on the issue, and the unanimous opinion offers some clues about how anti-abortion activists may continue to try to deny women across the country the right to abortion.
Some attorneys general have indicated they will pursue the case, but have not spelled out exactly how.
And although the ruling says the anti-abortion plaintiffs failed to prove they were harmed by others taking the drug, that may not stop other plaintiffs from successfully suing.
“The decision that the doctors don’t have standing to sue is a good one,” said Dr. Rebecca Gomperts, director of Aid Access, an abortion pill distributor that works with U.S. providers. “The problem is that the decision should have been that no one has standing to sue in this case – that only the women have standing to sue.”
Justice Brett Kavanaugh’s opinion even offers guidance for people who have “serious concerns and objections to the use of mifepristone and the performance of abortions by others.”
“Citizens and physicians who object to the law can always appeal to the executive and legislative branches to request stronger regulatory or legal restrictions on certain activities,” he wrote.
This path would work more 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, months after the Supreme Court overturned Roe v. Wade and struck down the federal right to abortion. Most GOP-controlled states had by then enacted novel bans or restrictions on abortion. The anti-abortion groups sought a nationwide ruling, asking the judges to find that the FDA had wrongly approved mifepristone and facilitated access.
A federal judge in Texas and the New Orleans-based 5th U.S. Circuit Court of Appeals upheld many of the group’s arguments, sparking such concern in some Democratic-controlled states that they stockpiled abortion pills.
Most medical abortions utilize a combination of mifepristone, which is also used to treat miscarriages, and another drug, misoprostol. The latter drug can also be used alone, although women are more likely to experience side effects.
Before Roe was overturned, about half of all abortions nationwide were performed using the pills. Last year, the drug was used by nearly two-thirds of women, according to a survey. In some states, doctors are using telemedicine appointments to prescribe and mail the pills to women in states where bans or restrictions exist. Underground networks are also distributing them.
After the doctors’ group, represented by the conservative Christian law firm Alliance Defending Freedom, filed suit, the Republican attorneys general of Idaho, Kansas and Missouri tried to step in. U.S. District Judge Matthew Kacsmaryk let them intervene in the case, but the Supreme Court then denied them the right to intervene.
David S. Cohen, a law professor at Drexel University who studies abortion law, said that normally, if the main parties’ lawsuits are dismissed for lack of standing, intervenors such as states are not allowed to proceed. But in this case, that is not yet clear, and state attorneys general are not giving up.
“We are moving forward with our litigation to protect both women and their unborn children,” Missouri Attorney General Andrew Bailey said on X.
When state attorneys general sought to intervene, they argued that the approval of mifepristone would undermine their ability to enforce abortion bans in their states and that state taxpayers might have to foot emergency room bills if women using the drug experience complications.
It’s not certain that the Supreme Court would accept such arguments as grounds to grant standing to states, says Mary Ziegler, a historian at the University of California, Davis School of Law who studies abortion. “The court is suspicious of speculation,” she says.
However, Ziegler said in a post on X Thursday: “Parts of this opinion could be read as the creation of a guide for future plaintiffs.”
And she noted that the ruling did not mention the Comstock Act, a 19th-century federal law that conservatives say can be used as evidence to prevent abortion pills from being shipped across state lines. The Biden administration is not interpreting it that way — but another might. And if an anti-abortion activist takes over as U.S. health secretary, he could revoke or change the Food and Drug Administration’s approval of mifepristone.
Another approach would be for Republican states to challenge so-called “shield laws,” laws in some Democratic-controlled states designed to protect health care providers when they prescribe drugs to patients in states with abortion bans.
Jillian Phillips, a mother from North Brookfield, Massachusetts, who took mifepristone to eliminate the remnants of a pregnancy after a miscarriage eight years ago, said she finds it arduous to view Thursday’s ruling as a victory for abortion rights because of the impact it could have.
“I’m always afraid that if we take a step forward,” she said, anti-abortion activists “will become even more desperate and put up even more hurdles and restrict things even more.”
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Associated Press reporters Kimberlee Kruesi in Nashville, Tennessee, and Laura Ungar in Louisville, Kentucky, contributed to this article.
