Not again: Abortion access before the Supremes

Last week, the U.S. Supreme Court (Supreme Court) heard oral arguments in the Food and Drug Administration v. the Alliance for Hippocratic Medicine – a case that would limit access to mifepristone – a drug used in combination with misoprostol to end a pregnancy that is less than 70 days (10 weeks gestation). This combination is commonly referred to as the “abortion pill.”

 Here's the issue at hand. The challengers in this case, a group of anti-abortion doctors, want the Supreme Court to restrict nationwide access to mifepristone and limit when it is used during a pregnancy.  These anti-abortion doctors are challenging the use of this FDA-approved drug, which was approved for medication abortion care in 2000, has been used by more than 5 million women in the U.S., and has a well-documented safety record.

Why is this case important?  This is the first time since the Dobbs v Jackson Women’s Health Organization decision that the Supreme Court has considered a case that further restricts access to abortions.  This abortion pill case is another attempt to limit access to abortions and reproductive health. If this lawsuit succeeds, it could dramatically affect access and availability of mifepristone nationwide, even in those states where abortion is still legal! 

To go deeper.  Recall way back in 2022, the Supreme Court, in its Dobbs decision to uphold a Mississippi law banning most abortions after 15 weeks of pregnancy subsequently overturned Roe v. Wade and ended the federal constitutional right to abortion in the U.S. that stood for nearly 50 years!  

As a result of the Dobbs decision, one in three women now live in states (at least 21 and counting) where abortion is unavailable or severely restricted.  The implications and repercussions of Dobbs have been felt the hardest by some Black and Brown patients.  According to a Health City article, the fallout from overturning the constitutional right to abortion has worsened reproductive health inequities for Black and Brown patients because they are less likely to have financial and logistical support available to go to another state to obtain an abortion.  Moreover, without access, maternal morbidity and mortality rates among black and brown individuals could increase.  The ruling in Dobbs will continue to drive policy discussions and political debate as we are seeing with this abortion pill case.  

In the abortion pill case, experts are saying that the Supreme Court could likely allow nationwide access of mifepristone to remain.  Despite this speculation, expect to see more cases of this nature come before the Supreme Court.  Much is brewing in the States.  See both Alabama’s Supreme Court ruling on IVF and Florida’s Supreme Court decision that a six-week abortion ban stands, but will be a November ballot issue so ultimately Florida voters will decide.  These are just two current examples of what we could see in months to come.  Further, abortion will be a hot issue as we go deeper into election season.  

We will learn the fate of mifepristone soon. The Supreme Court’s decision is expected to come down in late June or early July.  Stay tuned and informed!

[1] Discussion before the court centered on whether the challengers (Alliance for Hippocratic Medicine) have standing - a legal right to sue. According to the FDA’s lawyer, the suit should only move forward if the challengers can identify a doctor who faces imminent harm, and as of now the individual doctors in the lawsuit do not prescribe mifepristone nor are obligated to. The challengers argue that they do.

[2] The Supreme Court has a three-part test to determine if a party has standing or the right to sue: 1) The plaintiff must have suffered an injury that is  (a) concrete and particularized and (b) actual or imminent; 2) there must be a causal connection between the injury and the conduct brought before the court, and 3) it must be likely, rather than speculative, that a favorable decision by the court will redress the injury.