The Supreme Court and the Legal Future of Abortion Pill Access

Mifepristone, also known as RU-486, is a medication typically used in combination with misoprostol to bring about a medical abortion during pregnancy and manage early miscarriage. Currently, the Supreme Court is taking up the abortion pill. The Supreme Court has agreed to take up a case clarifying the availability of a widely used abortion pill after a series of rulings this year resulted in restricted access to the drug, though it remains on the market.

Legal Challenges and Recent Restrictions

A United States appeals court has ruled to restrict access to the abortion pill mifepristone, ordering a ban on telemedicine prescriptions and shipments of the drug by mail, this issue has created uproar in the USA, according to a report. It also limited its use to up to seven weeks of pregnancy, rather than 10. For the time being, Mifepristone’s availability remains unchanged for now, following an emergency order from the US Supreme Court in April preserving the status quo during the appeal.

The Supreme Court Case and FDA Approval

The high court announced Wednesday that it would hear a pair of lawsuits brought by doctors and medical groups opposed to abortion, whose challenge to the abortion drug, known as mifepristone, resulted in a court order invalidating the Food and Drug Administration’s approval of the drug — one that was eventually partially struck down on appeal. Following an appeal from the Justice Department, the Supreme Court temporarily halted any changes to the drug’s availability, including yet another proposed change from a three-judge panel in the Fifth Circuit that rolled back the federal agency’s expanded approval of the drug in 2016. The case would mark the first major abortion decision since the high court overturned Roe v. Wade last year.

Expert Analysis on Potential Outcomes

Regarding the potential ruling, “At this point, it’s really up in the air,” says Daniel Urman, director of hybrid and online programs in the School of Law. While the court has yet to hear oral arguments, Dan Urman says he sees the justices siding with the Biden administration and the drug companies, which asked the Supreme Court to intervene to preserve access until the dispute is resolved. Urman explains: “I think the court will likely rule for the FDA and the drug companies because upholding such a severe limitation on the FDA’s approval process would throw so much of the FDA’s work into question — including all sorts of life-saving drugs.”

Consolidating the two lawsuits, the court denied a third cross-petition from the Alliance for Hippocratic Medicine. Urman says that indicates that the justices may be concerned with issues of standing (or who can bring the lawsuit), not the merits (the question of the FDA’s initial and subsequent approvals of mifepristone). He continues: “They might find a way to limit standing of doctors to sue — in this case, doctors who were not treating patients were given the right to challenge the FDA approval of mifepristone. If they grant doctors standing, this means non-prescribing doctors could always try to invalidate the approval of drugs. That’s unlikely to be something the justices want to do.”

The high court’s initial pause on the lower court’s changes, coupled with its decision not to grant the plaintiffs’ petition, suggests a reluctance to completely eliminate the drug from the market, says Wendy Parmet, a professor at Northeastern University School of Law. At the same time, Parmet says that because the Supreme Court took a narrower approach in reviewing the issue, it may be possible that certain restrictions are still evaluated.

Summary of Access Status and Proposed Changes

• Current Status: Availability remains unchanged following an emergency order preserving the status quo.
• Proposed Time Limit: Use limited to seven weeks of pregnancy, rather than 10.
• Proposed Distribution Ban: Ordering a ban on telemedicine prescriptions and shipments of the drug by mail.
• FDA Approval: The case clarifies the federal agency’s expanded approval of the drug in 2016 and subsequent initial approvals.