The US Supreme Court decided Wednesday to hear a case challenging access to abortion pills in the United States, including in states where abortion is legal.
This will be the most consequential case for access to reproductive health care since the overturning of Roe v. Wade in 2022. Following the Roe decision, many patients seeking abortions turned to telehealth providers, who could then send abortion pills by mail. Pills are now the most common abortion method in the US; curtailing the availability of medication abortion would be a major blow to reproductive health care.
“The future of telehealth for medication abortion care now hangs in the balance," says Dana Northcraft, the founding director of the Reproductive Health Initiative for Telehealth Equity and Solutions. "Telehealth for medication abortion is safe and effective and helps people overcome barriers to care, whether it be long travel distances or getting time off from work or school.”
The Supreme Court will hear the case this term, which means a decision may come in summer 2024, in the midst of the US presidential election season.
The ongoing legal saga centered on access to mifepristone began way back in 2002, when an alliance of anti-abortion activist groups first challenged the approval of the drug with a citizen petition. (The standard two-step regimen of medication abortion, which couples mifepristone with another drug, misoprostol, has been legal in the United States since 2000, when the Food and Drug Administration first approved mifepristone.) The FDA ignored that initial challenge, but the coalition of activists persisted.
In November 2022, the group brought suit in Texas, claiming that the FDA’s original approval process was flawed because it did not properly assess safety risks. An initial ruling from Judge Matthew Kacsmaryk of the Northern District of Texas sided with the plaintiffs, invalidating the FDA’s approval. (Kacsmaryk is a President Trump appointee known for his anti-abortion views.)
In April, shortly after the initial ruling, the Fifth Circuit Court of Appeals partly overruled Kacsmaryk, allowing mifepristone to stay on the market but overturning the ability to receive the medication by mail. At the urging of the Biden administration, the Supreme Court then ordered a stay until the appeals process concluded. This bought virtual abortion clinics some time, as they would have otherwise been forced to modify how they operated. Some clinics, like Hey Jane, have planned to continue offering medication abortion, but with a one-pill regime of misoprostol, if mifepristone becomes unavailable. For now, they are able to continue offering the two-pill protocol.
“From the moment this litigation was first filed, it was designed to cause confusion," says Kiki Freedman, the cofounder and CEO Hey Jane. “Mifepristone is safe, mifepristone is effective, and mifepristone is still FDA-approved. Hey Jane will continue to deliver evidence-based, compassionate medication abortion care to our patients."
In September, the Justice Department asked the Supreme Court to intervene in an attempt to end the legal logjam. In court papers filed that month, US Solicitor General Elizabeth Prelogar stressed that the Fifth Circuit’s decision was the first time a court had doubted the FDA’s judgement on whether a drug should be allowed on the market, and that upholding it would upend the way medications are developed and approved in the US. “The logic of the Fifth Circuit’s unprecedented decision would threaten to severely disrupt the pharmaceutical industry and prevent FDA from fulfilling its statutory responsibilities according to its scientific judgment,” Prelogar wrote.
When news broke Wednesday that the Supreme Court would hear the case, abortion advocates expressed gratitude that the legal confusion currently surrounding mifepristone might soon be resolved. Now they're waiting to see what the justices will do, and what impacts it will have on those seeking abortions. “The stakes are enormous in post-Roe America,” says Nancy Northup, president and CEO of the Center for Reproductive Rights. “Even those living in states with strong protections for abortion rights could have their ability to access mifepristone severely restricted if the court rules against the FDA.”
Heath care providers will also be watching the decision closely. "The safety of mifepristone has been proven through research time and again, including the ability to provide this critical care through telemedicine," says Daniel Grossman, the director of the University of California San Francisco's Advancing New Standards in Reproductive Health program. "My hope is the Supreme Court will confirm this once and for all."
Overturning Roe demonstrated how sympathetic the Supreme Court can be toward anti-abortion activism. But curtailing mifepristone access may be too extreme even for this iteration of the court. It already declined to hear the cross-petition from the anti-abortion activists asking to review the original 2000 approval of mifepristone, signaling a reluctance to challenge the FDA to that degree.
"Hopefully, the fact that the court denied cert in the cross-petition is an indication that they don’t want to upset the apple cart with FDA approval," says David S. Cohen, a professor of law at Drexel University who studies abortion rights and the law. "But, it’s scary to have this Supreme Court once again wade into abortion."
Additional reporting by Emily Mullin.
