WASHINGTON (AP) — The Supreme Court on Thursday unanimously upheld access to a drug used in most abortions in the U.S. But abortion opponents say the ruling will not be the final word in the fight over mifepristone.
The narrow decision came two years after the Supreme Court struck down the federal abortion right. Rather than addressing the issue in depth, the Supreme Court ruled that anti-abortion activists did not have standing to sue.
This could give anti-abortion activists or other opponents the opportunity to continue the fight.
Some insights from the decision:
What does this say about the Supreme Court and abortion?
Not necessarily very much. Justice Brett Kavanaugh, who was part of the court majority that overturned Roe two years ago, took a minimalist approach in his ruling that seemed designed to bypass disagreement and reach a unanimous conclusion.
The court concluded that the anti-abortion activists could not sue because they suffered no actual harm from the drug. This is because, among other things, federal law prevents doctors from performing abortions if they object.
The court did not address whether the FDA ultimately complied with the law when it made changes to make mifepristone more accessible, including allowing telemedicine prescriptions and mail delivery to patients. It said opponents could take their arguments elsewhere, such as to the president or to the FDA.
No mention was made of the Comstock Act, a 19th-century law that some anti-abortion activists say can be used to prevent mifepristone from being sent through the mail; two conservative justices mentioned it during oral arguments.
The court’s ability to reach a unanimous decision was certainly helped by aggressive rulings from lower courts that took many of the anti-abortion lawsuits into account and deviated from the usual way courts decide whether someone can sue. This legislative session, the Supreme Court is considering several appeals from novel rulings by the New Orleans-based 5th U.S. Circuit Court of Appeals.
Kavanaugh rebuked him in the form of a brief but poignant lesson in civics, saying that a federal court is “not a legislative assembly, not a town square, not a staff lounge.”
What happens next?
The legal dispute over mifepristone does not seem to be over yet.
Erin Hawley, the lead attorney for the anti-abortion group, expects the states that previously joined the lawsuit will continue the case. They could argue that while doctors don’t have the legal standing to challenge the drug, the states do.
The attorney general of one of those states, Kris Kobach of Kansas, made similar comments, saying it was “imperative” that the case proceed.
One potential problem for the states is that the justices have denied them permission to intervene in the Supreme Court case.
Abortion rights advocates have also said they expect continued efforts to restrict mifepristone.
What does this mean politically?
While Thursday’s ruling avoids immediate seismic political implications, the issue will still be front and center in this election year.
Democrats said the Supreme Court made the right decision on abortion medication, but warned the ruling would not end Republican threats to abortion rights. Vice President Kamala Harris said allies of former President Donald Trump would continue to try to shut down access to medication abortion and impose further restrictions, including a nationwide ban.
Patient Kaniya Harris, 21, said she was deeply relieved that the drug allowed her to perform her own abortion in Bethesda, Maryland, during her third year of college in March 2023. She later demonstrated in court to demand access to the drug.
“We still have a long way to go,” she said. “We are still pushing for access to abortion… But at least this is a step in the right direction.”
Currently, only about half of all states allow unrestricted access to the drug under FDA regulations. However, statistics show that people in states with such restrictions continue to receive the drug through the mail.
Most Republican politicians and candidates have not been as vocal. Trump, the presumptive Republican nominee, had previously said he would announce a position on medication abortion but has not done so. In April he said abortion should be left to the states, but this week he also called on an anti-abortion Christian group to stand up for “innocent life.”
Abortion will also be put directly on the ballot in at least four states, where voters will be asked to approve constitutional amendments that would ensure access to abortion. Similar measures could be put on the ballot in several other states.
Is the Supreme Court done with abortion?
No. It’s not even the last abortion case of this legislative session. The Supreme Court is also expected to issue a decision in the coming weeks on whether federal law protects emergency abortions in states with strict bans.
The Biden administration argues that abortions must be allowed only when the woman’s health is seriously at risk. It has sued the state of Idaho, which claims its exemption for life-saving measures is sufficient.
Kavanaugh mentioned the Supreme Court’s other abortion case in his decision Thursday, noting that the Justice Department has recognized that anti-abortion activists do not have to participate in abortions under federal conscience laws.
The reference gives no indication of how the court might rule in this case, said Sara Rosenbaum, a professor of health policy at George Washington University. The fact that the court did not announce a decision in this case and in the mifepristone case could be a sign that the decision on emergency abortion “is going to be a much more difficult decision.”
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Associated Press writers Mark Sherman and Amanda Seitz in Washington, Geoff Mulvihill in Cherry Hill, N.J., and Christine Fernando in Chicago contributed to this report.
