WASHINGTON (AP) — The Supreme Court on Thursday unanimously upheld access to a drug used in nearly two-thirds of all abortions in the U.S. last year, the court’s first abortion decision since conservative justices overturned Roe v. Wade two years ago.
The nine justices ruled that anti-abortion activists did not have standing to challenge the FDA’s approval of the drug mifepristone and the FDA’s subsequent actions to facilitate access to the drug. The case threatened to restrict access to mifepristone across the country, even in states where abortion is still legal.
Justice Brett Kavanaugh, who was part of the majority that overturned Roe, wrote on behalf of the court on Thursday that “federal courts are the wrong forum to address plaintiffs’ concerns about FDA’s actions.”
In 14 states, abortion is banned at any stage of pregnancy, and in three others it is banned after about six weeks of pregnancy, often even before the woman realizes she is pregnant.
President Joe Biden praised the decision but signaled that Democrats will continue to push difficult for abortion ahead of the November election. “It does not change the fact that a woman’s right to the care she needs is at risk, if not impossible, in many states,” Biden said in a statement.
The Supreme Court is also considering another abortion case, which asks whether a federal law requiring emergency hospital care in occasional emergency situations in which a pregnant patient’s health is at grave risk overrides state abortion bans.
Since 2000, more than 6 million people have used mifepristone. Mifepristone blocks the hormone progesterone and prepares the uterus for the contraction-inducing effects of a second drug, misoprostol. The two-drug regimen has been used to terminate a pregnancy up to 10 weeks gestation.
Doctors have stated that if mifepristone becomes unavailable or too tough to obtain, they would switch to using misoprostol alone, which is slightly less effective at terminating pregnancies.
Biden’s administration and drugmakers had warned that siding with anti-abortion groups in the case could undermine the FDA’s drug approval process beyond the abortion context by asking judges to second-guess the agency’s scientific judgments. The Democratic administration and New York-based Danco Laboratories, which makes mifepristone, argued that the drug was among the safest the FDA had ever approved.
The decision “secures access to a drug that has been used safely and effectively for decades,” Danco spokeswoman Abigail Long said in a statement.
The plaintiffs in the mifepristone case, anti-abortion activists and their organizations, argued in court filings that the FDA’s 2016 and 2021 decisions to loosen restrictions on obtaining the drug were unreasonable and “put the health of women across the country at risk.”
Kavanaugh acknowledged that opponents had “serious legal, moral, ideological and political objections to abortion on demand and to the FDA’s lax regulation of mifepristone.”
Federal law already protects doctors from being forced to perform abortions or administer other treatments that violate their beliefs, Kavanaugh wrote. “Plaintiffs have not identified any cases since mifepristone was approved in 2000 in which a physician, despite conscientious objections, was compelled to perform an abortion or administer another abortion-related treatment that violated the physician’s conscience,” he wrote.
Ultimately, Kavanaugh said, anti-abortion activists have turned to the wrong forum and should instead focus their energies on getting lawmakers and regulators to make changes.
These comments pointed to the importance of the 2024 election and the possibility that an FDA commissioner appointed by Republican Donald Trump might consider restricting access to mifepristone if he wins the White House.
Abortion rights advocates mostly breathed a sigh of relief after the decision, but echoed Biden’s sentiments regarding the impact of the decision two years ago.
“Ultimately, this ruling is not a ‘victory’ for abortion – it simply maintains the status quo, which is a dire public health crisis that has led 14 states to criminalize abortion,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement.
The mifepristone case began five months after the Supreme Court overturned Roe. Abortion opponents initially won a sweeping ruling nearly a year ago from U.S. District Judge Matthew Kacsmaryk, a Trump nominee in Texas, that would have completely overturned the drug’s approval. The 5th U.S. Circuit Court of Appeals left the FDA’s original approval of mifepristone in place, but it would reverse changes regulators made in 2016 and 2021 that relaxed some conditions for administering the drug.
The Supreme Court initially stayed the appeals court’s amended ruling and then agreed to hear the case. Justices Samuel Alito, the author of the decision overturning Roe, and Clarence Thomas would have allowed some restrictions during the hearing of the case, but they too joined the court’s opinion on Thursday.
The push to restrict the apply of abortion pills is unlikely to end with the Supreme Court’s decision, said the lawyer who represented anti-abortion activists and their organizations in the case.
The ruling that the doctors did not have the right to sue leaves the way open for lawsuits from other states, including three other states that Kacsmaryk had previously allowed to join the case, said Erin Hawley, an attorney with the group Alliance Defending Freedom.
Hawley said she expects Idaho, Kansas and Missouri to continue the lawsuit originally filed in Texas.
Kansas Republican Attorney General Kris Kobach claimed in a statement that states “have a right to sue that doctors lacked” and confirmed that he would pursue the case in Kacsmaryk’s court.
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Associated Press writer Lindsay Whitehurst contributed to this report.
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