Supreme Court to decide whether abortion pill will remain widely available

The Supreme Court is reentering the abortion wars.

The justices announced Wednesday they will decide how patients can access a widely used abortion pill — placing the issue on the political front burner in the lead-up to the 2024 election that will decide control of Congress and the White House.

In an order, the high court said it will hear a case brought by a conservative group challenging policies expanding access to the drug mifepristone. Those policies, issued in recent years by the FDA, have allowed the pills to be prescribed online, mailed to patients and dispensed at brick-and-mortar pharmacies.

The court turned down a broader challenge by the same group targeting the decades-old approval of the drug for use in abortions — a case that could have effectively banned the pills nationwide.

The justices will likely hear arguments in the spring and issue a decision by the end of June. Under an earlier order from the high court, current access to the medication will remain in place until the final ruling.

The outcome could affect health care for millions — even those in states that protect abortion rights — because the abortion pill is the most common method of terminating a pregnancy.

The case is the Supreme Court’s first significant return to the abortion issue since it overturned Roe v. Wade — the landmark precedent that guaranteed a federal constitutional right to abortion for nearly a half century.

Last year’s decision upended the political landscape, changing the trajectory of the 2022 midterms in Democrats’ favor and fueling a streak of state-level wins for abortion-rights measures even as many red states imposed near-total abortions bans.

The case also has the potential to intensify the spotlight on abortion just as the presidential race heats up. The high-profile arguments, and a ruling that could come five months before the election, could call further attention to former President Donald Trump’s role in cementing the Supreme Court majority that overturned Roe, even as Trump has sought to downplay the topic, amid evidence that the issue has driven moderate voters away from the GOP.

Abortion pills have become a key part of the response by medical providers and reproductive rights advocates to the court’s decision last year striking down Roe in Dobbs v. Jackson Women’s Health Organization. The drugs can be transported across state and national borders, skirting largely successful efforts by abortion-rights opponents in red states to curtail the procedure by shutting down clinics and threatening physicians with criminal prosecution.

Mifepristone has been used for decades to terminate a pregnancy up to about 10 weeks gestation.

Even before the Dobbs ruling, medication abortions had overtaken surgical abortions in the U.S., accounting for more than half of pregnancy terminations in 2021, according to the Guttmacher Institute, a reproductive rights research and advocacy group. The pills’ popularity increased further during the Covid-19 pandemic, when the FDA loosened restrictions on how patients could obtain it to limit the number of people exposing themselves to the virus while seeking in-person care.

Medical associations and the FDA vouch for mifepristone’s documented safety, noting it has a lower rate of complications than other widely used drugs such as Tylenol or Viagra.

But the group of anti-abortion doctors that filed the legal challenge — the Alliance for Hippocratic Medicine — claims the FDA minimized and overlooked the health risks of the drug at the time of its initial approval in 2000 and when it later approved wider access through telemedicine, mail delivery and prescribing by pharmacists.

“Every court so far has agreed that the FDA acted unlawfully in removing common-sense safeguards for women and authorizing dangerous mail-order abortions," Erin Hawley, senior counsel for Alliance Defending Freedom said in a statement. "We urge the Supreme Court to do the same. The FDA has harmed the health of women and undermined the rule of law by illegally removing every meaningful safeguard from the chemical abortion drug regimen.”

The conservative group had asked the justices to consider its ability to challenge the initial approval, but that petition was denied Wednesday as the high court announced it will consider the steps the FDA took under the Obama administration in 2016 and under the Biden administration in 2021 to broaden access to the drug.

Beyond legalizing online prescriptions, mail delivery and pharmacy dispensing of the drugs, the rules expanded approval for use in the first 10 weeks of pregnancy, up from seven, and approved a generic version of the pill. Lifting the longstanding requirement that patients only receive the pills after an in-person visit with a physician made them more accessible, particularly for people in rural areas and for those without transportation. The FDA cited years of studies showing the pills are safe no matter how patients receive them to back up its decision to take these steps — though the anti-abortion challengers say they did not adequately consider the risks.

In April of this year, the Supreme Court temporarily blocked the lower court rulings, effectively preserving the national patchwork of access to the pills while litigation in the case continued.

Justices Clarence Thomas and Samuel Alito dissented from that ruling, with Alito arguing that alarm over the lower court decisions was unwarranted because the FDA would likely have taken steps to try to allow the drug to remain on the market while any legal flaws in the agency’s process were remedied.

The two pharmaceutical companies that produce and sell mifepristone had told the Supreme Court that the restrictions ordered by the 5th Circuit could amount to a nationwide ban of the drug, at least temporarily, by forcing them to create new product labels, recertify providers, apply to the FDA for a new regulatory framework and jump through other time-consuming administrative hoops, potentially cutting off access to the pill for months.

Leaders of the pharmaceutical industry had warned of dangerous ripple effects should the justices second-guess and overturn longstanding rules crafted by federal scientists, saying doing so would make companies hesitant to submit new drugs for approval and create an incentive for activists to challenge other drugs they disagree with — from contraceptives to Covid vaccines.

“As we noted in our friend of the court brief earlier this year, disrupting the market for mifepristone would cause substantial, irreparable harm, and we call on the Supreme Court to reverse the Fifth Circuit's ruling," Evan Masingill, CEO of GenBioPro, which manufactures the generic version of the pill, said in a statement. "We remain concerned about extremists and special interests using the courts in an attempt to undermine science and access to evidence-based medication, as well as attempts to undermine the FDA’s regulatory authority."