American Sexual
Health Association

Supreme Court Leaves Mifepristone Rules Alone—For Now

A person holds a pill in one hand and a glass of water in the other

The U.S. Supreme Court overruled a lower court decision that would have made mifepristone harder to get even in states where abortion remains legal. This decision is good news for women and providers. However, it doesn’t mean the court is softening its stance on abortion rights.

Challenging Access to Medication Abortion

The case in question was brought by the Alliance for Hippocratic Medicine, a loose affiliation of anti-abortion doctors who sued the FDA. The group wanted mifepristone, one of two prescription drugs used in medication abortion, to be taken off the market. It argued that the FDA’s initial approval of the medication (over 20 years ago) did not properly consider the risks of the medication.

This argument is bogus. Mifepristone has been proven to be safer than many medications on the market including Viagra and Tylenol. In fact, two of the studies cited in the group’s briefs have since been retracted by the publisher.

If it couldn’t get that, the group wanted the courts to roll back rules put in place by the Biden administration that made it easier to get mifepristone. The new rules allowed more pharmacies to carry the drug, permitted mail-order prescriptions, and allowed the drug to be used up to 10 weeks of pregnancy. (Previously it had only been approved up through seven weeks).

Making the Way Through the Courts

The case was first heard by Texas Judge Matthew Kacsmaryk, a Trump appointee who is known to be friendly to conservative groups. He agreed that the FDA’s approval of mifepristone should be overturned. He also said that allowing people to get mail-order mifepristone violated the Comstock Act of 1873. That archaic legislation forbids people from sending “obscene” material through the mail. It was used to prevent people from accessing porn, contraception, and abortion. It remains on the books, but hasn’t been enforced in decades in part because of Supreme Court decisions like Roe v. Wade.

The case was immediately appealed to the conservative Fifth Circuit Court of Appeals. That court ruled that it was too late to overturn the FDA’s approval of mifepristone, but agreed that the newer rules were fair game. Notably, they agreed that allowing the medication to be sent through the mail violated the Comstock Act.

The Supreme Court took the case, but its decision didn’t really deal with any of these issues. Instead, the court ruled that the Alliance for Hippocratic Medicine did not have standing to sue. In order to sue in federal court, plaintiffs must show they’ve been injured by a law or that they will soon be injured by the law. The group argued that their anti-abortion members would be harmed if they had to treat a patient who took mifepristone for an abortion and was having complications. The group acknowledged that this hadn’t happened yet (despite 20 years of use). Still, they believed they had the right to sue because it might happen in the future. The Supreme Court didn’t buy it.

Writing for the majority, Justice Brett Kavanaugh said, “…but 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 by the government’s alleged under-regulation of others.” Kavanaugh also stressed that the doctors in this case are already protected by federal conscience clauses. These allow health care providers to opt out of treatments that go against their religious beliefs.

The Case Isn’t Closed—Future Challenges Remain

This decision temporarily protects the rules around mifepristone, but the case isn’t entirely dead. Kacsmaryk granted Idaho, Oklahoma, and Missouri permission to intervene in the case, and they could try to revive it in his court. States have been found to have standing in abortion cases. It is also possible that the conservative groups who organized this case will find a new plaintiff and bring a similar suit.

Again, nothing about this decision should be considered a victory for abortion rights. The court decision didn’t touch on the Comstock reasoning Kacsmaryk used in his original decision. Reviving Comstock could be the basis for a national abortion ban or bans on contraceptives. The court also didn’t acknowledge that mifepristone has been found to be very safe.

Instead, Kavanaugh’s decision focused on the federal conscience clause. Some legal experts believe he was trying to bolster an upcoming abortion decision that centers on the Emergency Medical Treatment and Labor Act. That case will consider whether doctors have an obligation to treat emergency situations regardless of state abortion laws. That decision should be handed down any day.

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