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In a pivotal session on Tuesday, the Supreme Court appeared inclined to maintain the availability of a drug instrumental in nearly two-thirds of all U.S. abortions last year. This marks the court’s initial abortion-related case since the conservative majority overturned Roe v. Wade two years prior.
During the 90-minute discussion, it became evident that the abortion adversaries challenging the FDA’s endorsement of mifepristone, and its subsequent measures to simplify access, might not possess the legal standing required to file a lawsuit.
This outcome would sustain the current regulations, enabling patients to obtain the medication via mail without a mandatory in-person doctor’s visit, and use it to terminate pregnancies up to 10 weeks.
Elizabeth Prelogar, representing the Biden administration as the top Supreme Court lawyer, emphasized that the challengers, comprising anti-abortion doctors and organizations, are far from having the legal standing to sue.
Even the three justices, who played a part in overturning Roe, questioned the standing of the abortion opponents’ attorney. Appointees of former President Donald Trump, Justices Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh, showcased their skepticism.
Barrett, for instance, questioned the actual harm the FDA’s decisions caused the doctors, a crucial factor in establishing standing.
The opponents of abortion are urging the justices to endorse a decision from a conservative federal appeals court that would restrict access to mifepristone, a key component in medication abortions.
The court’s re-engagement with abortion issues unfolds within a political and regulatory environment drastically altered by the 2022 abortion decision, prompting numerous Republican-led states to impose significant abortion restrictions.
The anticipated ruling, expected by early summer, could significantly influence congressional and presidential races. Outside the Supreme Court, a vibrant scene unfolded with demonstrators from both sides expressing their views, as police secured the surrounding area.
A ruling favoring the abortion opponents could severely impact the distribution of mifepristone, potentially limiting its use to seven weeks of pregnancy and ending the increasingly common practice of prescribing the drug during telehealth consultations.
The Biden administration and drug manufacturers caution that such a verdict could also challenge the FDA’s drug approval process by allowing judges to question the agency’s scientific evaluations.
Critics argue that the FDA’s decisions to ease restrictions on the drug in 2016 and 2021 were irrational and compromised women’s health nationwide. In contrast, the Democratic administration and Danco Laboratories, the drug’s manufacturer, defend mifepristone as one of the FDA’s safest approved drugs.
A possible resolution could see the justices sidestepping the case’s more contentious elements while preserving mifepristone access, based on the argument that the challengers lack the legal standing to sue. This would effectively dismiss the case and nullify the appellate ruling.
Another abortion case is already on the docket, with the justices set to deliberate next month on whether a federal law regarding emergency treatments at hospitals must cover abortions, even in states with bans.
The mifepristone case commenced five months post the Supreme Court’s overturning of Roe v. Wade. Initially, abortion opponents secured a broad ruling from U.S. District Judge Matthew Kacsmaryk, a Trump nominee, which would have completely revoked the drug’s approval. However, the 5th U.S. Circuit Court of Appeals maintained the FDA’s initial approval of mifepristone but proposed reversing the regulatory changes made in 2016 and 2021 that facilitated access to the drug.
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