The Supreme Court on Thursday rejected an effort by abortion opponents to limit access to mifepristone, one of the two drugs used for a medication abortion.
The case was brought by a group of anti-abortion doctors in Texas called the Alliance for Hippocratic Medicine, which formed in the wake of the Supreme Court’s decision ending Roe v. Wade in 2022.
The Court ruled that the anti-abortion doctors and associations that filed the lawsuit do not have legal standing to sue, because they don’t have any direct relationship with the regulation of mifepristone.
Here’s what to know:
The ruling was unanimous, and procedural
The 9-0 decision was authored by Justice Brett Kavanaugh, who was appointed by former President Donald Trump.
The ruling was procedural, meaning it didn’t address the underlying regulatory or safety issues the plaintiffs raised. Instead, Kavanaugh wrote that the Alliance couldn’t show that any of its doctors had been directly impacted by FDA’s actions.
“We recognize that many citizens, including the plaintiff doctors here, have sincere concerns about and objections to others using mifepristone and obtaining abortions,” Kavanaugh wrote. “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 underregulation of others.”
Justice Clarence Thomas wrote a concurring opinion where he further commented on the issue of standing and reiterated his belief that pro-abortion doctors don’t have the standing to sue on behalf of their patients.
Access isn’t changing, but it’s still a patchwork
Thursday’s ruling maintained the status quo but did not make mifepristone widely available.
The drug will remain available to people up to the 10th week of pregnancy and will still be available through the mail. Nurses and other non-physicians are still allowed to prescribe it.
But it all depends on where you live.
Walgreens and CVS in March said they would fill prescriptions for mifepristone “in states where it is legally allowed.”
“Right now, Planned Parenthood health centers across the country will continue to provide patients with medication abortion using mifepristone in states where abortion is legal,” Jacqueline Ayers, a senior vice president with Planned Parenthood Action Fund, told reporters Thursday.
Abortion is almost completely banned in more than a dozen states, meaning mifepristone is illegal.
Some states have essentially banned telemedicine abortion by requiring a physician to be in the same room as the patient when administering the medications. Arizona has banned them from being mailed.
There are a handful of providers in blue states that prescribe abortion pills through telehealth shield laws, but they don’t operate in every state, and red states are looking for ways to stop the practice.
Louisiana for instance recently passed a law declaring mifepristone and misoprostol controlled substances, criminalizing possession without a prescription.
Democrats and abortion rights groups aren’t celebrating
The ruling is the most significant for abortion rights since the Supreme Court overturned Roe v. Wade two years ago, but it’s far from the end of the fight.
Democrats and abortion rights activists said they know there will be more attacks on abortion coming.
“Today’s decision does not change the fact that the fight for reproductive freedom continues. It does not change the fact that the Supreme Court overturned Roe v. Wade two years ago, and women lost a fundamental freedom. It does not change the fact that the right for a woman to get the treatment she needs is imperiled if not impossible in many states,” President Biden said in a statement.
Julia Kaye, a senior staff attorney with the ACLU Reproductive Freedom Project, told reporters the ruling was a “relief.”
“But we should not be dazzled by the fact that the Supreme Court did the right thing here,” she said. “While the Supreme Court refused to allow these particular people to bring this case, anti- abortion politicians are waiting in the wings to continue this campaign to strip away access to medication abortion care.”
In addition, the Court is due to rule in the coming days or weeks on another abortion case pitting Idaho against the Biden administration in a test of whether doctors can perform an abortion on patients experiencing a serious, but not necessarily life-threatening, medical emergency.
This case may not be over
Thursday’s ruling may not be the end of legal challenges to mifepristone.
The ruling doesn’t rule out a new lawsuit by plaintiffs with stronger arguments on standing.
But the bigger threat could come from a trio of red states.
Idaho, Kansas and Missouri sought to join the case. The Supreme Court rejected the request, but a conservative judge in Amarillo, Texas, who initially ruled against the FDA, allowed them to intervene in his district.
“I would expect the litigation to continue with those states raising different standing arguments than made by our doctors,” said Erin Hawley, an attorney with the conservative Alliance Defending Freedom who argued the case on behalf of the doctors.
It remains to be seen if those states have standing to sue FDA, or whether the case will even continue. Because the Supreme Court found the parties had no standing, some legal experts have said the red state attorneys general have no case to intervene in.
But even if the case is ultimately dismissed in Amarillo, abortion advocates said they expect to see copycat lawsuits in either Idaho, Missouri or Kansas.
