Supreme Court Upholds Access to Abortion Pill Mifepristone
The Supreme Court upheld access to a widely used abortion pill, mifepristone, in a unanimous decision issued on Thursday. This unanimous decision leaves FDA’s approval of a widely used abortion pill intact, but sidesteps bigger questions about the future of abortion access in the United States, says LAW’s Nicole Huberfeld.
The Unanimous Ruling and Legal Standing
The opinion, written by Justice Brett M. Kavanaugh, rejects a bid by a group of antiabortion doctors to unravel the US Food and Drug Administration’s approval of the pill, holding instead that the group didn’t have the legal standing to bring the case in the first place. The decision to sidestep the substance of the arguments and instead make a procedural ruling on standing “isn’t a surprise,” says Nicole Huberfeld, the Edward R. Utley Professor of Health Law, Bioethics & Human Rights.
To establish standing, a plaintiff must demonstrate that they have suffered or likely will suffer an injury, that the injury likely was caused or will be caused by the defendant, and that the injury likely would be redressed by the requested judicial relief. Quoting the late Justice Antonin Scalia, Kavanaugh distilled the issue of standing down to a single question: “‘What’s it to you?’” He wrote that citizens and doctors do not have standing to sue simply because others are allowed to engage in certain activities—at least without the plaintiffs demonstrating how they would be injured.
Medical Use and Scientific Safety
In their ruling, the justices sided with the Biden administration and the makers of mifepristone, reversing a lower court decision that would have made it more difficult to obtain the drug used in more than 60 percent of US abortions. Mifepristone is the first in a two-drug protocol for medical abortion. The other is misoprostol. The groups involved in the case also questioned the safety of mifepristone—questions that fly in the face of the drug’s well-established scientific record of safety.
Huberfeld says: “I think it’s important for people to recognize that mifepristone remains legal, and it remains legal under the 2021 protocols that make it permissible to obtain mifepristone via telehealth—you don’t have to see a physician in person.” Their argument stems largely from two changes the FDA made in 2016 and 2021, both making it easier to access the pill through telemedicine and by mail.
Summary of Mifepristone Access and Data
| Feature | Details |
|---|---|
| Usage | Used in more than 60 percent of US abortions. |
| Protocol | First in a two-drug protocol (the other is misoprostol). |
| Access | Permissible via telehealth and mail under 2021 protocols. |
| Safety | Well-established scientific record of safety. |
Future of Abortion Access
The court’s ruling is a lukewarm victory for abortion rights advocates, as it merely maintains the status quo—14 US states still have near-total abortion bans in place—and doesn’t prevent another antiabortion plaintiff from trying a similar case in the future. Huberfeld notes that this decision doesn’t mean that this kind of question couldn’t come to federal courts again—with the right parties.
When it overturned Roe v. Wade in 2022, the Supreme Court signaled it was getting out of the abortion business, and instead turning those decisions over to Congress and to the individual states. However, Huberfeld says it was always probably a fantasy that the high court could get out of ruling on abortion policy issues.