Unanimous Supreme Court preserves access to widely used abortion pill

A unanimous U.S. Supreme Court on Thursday preserved widespread access to a popular medication abortion pill, the court’s first abortion-related decision since overturning Roe v. Wade two years ago.

After months of high-profile proceedings in the lower courts – at one point the medication, mifepristone, was on the verge of being pulled from the market entirely – the case ended in a judicial anticlimax. The justices dismissed the case on procedural grounds, ruling that the plaintiffs have not suffered the clear and concrete harms necessary, meaning they did not have the legal right, to bring the case in the first place. 

In the short term, the narrow ruling preserves widespread access to mifepristone, a drug that has become more widely used as states have placed more restrictions on surgical abortion in the wake of Roe’s overturning in 2022. In the long term, the justices are likely to hear more legal challenges to abortion access, including a newly postured challenge to mifepristone. The burden will be on future plaintiffs and lower courts to make sure, unlike here, that all the proper judicial procedures are followed.

The decision “does tell us that there are bridges too far when it comes to standing, even for movements and groups with which the court is likely sympathetic. But it tells us very little about what the court thinks substantively about abortion,” says Mary Ziegler, a professor at the University of California, Davis School of Law.

At issue: The FDA and access to abortion medication

The case did have potentially seismic implications. The U.S. Food and Drug Administration (FDA) first approved mifepristone, part of a two-drug medication abortion regimen, in 2000. Since then, the agency has relaxed restrictions on when doctors can prescribe the drug and how patients can access it.

Medication abortion has also become more common. Two-thirds of all abortions in the United States last year were medication abortions, according to a survey from the Guttmacher Institute. Mifepristone is the most widely used medication abortion drug in the country, according to Guttmacher, because of its strong safety record.

Some groups are skeptical of that safety record, however. Two years ago, a coalition of anti-abortion organizations and anti-abortion physicians sued the FDA, claiming that the agency’s approvals of mifepristone were flawed from the start. A district court judge in Texas agreed, revoking all of the FDA’s mifepristone approvals dating back to 2000. On appeal, the U.S. Court of Appeals for the 5th Circuit upheld the agency’s 2000 approval but revoked its more recent actions in 2016 and 2021 expanding access to the drug.

Allen G. Breed/AP/File

Boxes of the drug mifepristone sit on a shelf at the West Alabama Women's Center in Tuscaloosa, Alabama, March 16, 2022.

The Supreme Court never considered any of those issues because the justices agreed that the plaintiff organizations and doctors never should have been allowed to bring the case in the first place.

Unanimity on legal standing

​​“The plaintiffs have sincere legal, moral, ideological, and policy objections to elective abortion and to FDA’s relaxed regulation of mifepristone. But under Article III of the Constitution, those kinds of objections alone do not establish a justiciable case or controversy in federal court,” wrote Justice Brett Kavanaugh in the opinion.

This threshold doctrine is known as “standing.” Plaintiffs are required to show that a government action has caused them concrete injury, or is very likely to, and that is the first question a federal judge must consider when hearing a case. There are many disagreements over how standing doctrine should be applied. In a solo concurrence, Justice Clarence Thomas reiterated a longstanding criticism of his that, just as groups and doctors who support abortion access “lack standing to assert the rights of their clients, doctors who oppose abortion cannot vicariously assert the rights of their patients.”

In this case the plaintiffs’ standing arguments were always tenuous. Neither the anti-abortion groups nor the doctors who brought the suit prescribe or use mifepristone. Instead, they argued that they would be forced to treat large numbers of women who experience complications after taking mifepristone despite their conscience objections. The organizations also argued that the FDA’s regulatory actions forced them to divert time, energy and resources from other activities.

None of those arguments held water with the justices. Federal conscience laws “definitively protect doctors” from being required to perform abortions or to provide other abortion-related treatment, wrote Justice Kavanaugh.

Furthermore, creating what he described as “doctor standing” would lead the federal judiciary down an “uncharted path,” he added. If the Environmental Protection Agency relaxed air quality standards, a doctor could sue if it led them to treat more asthma patients. If a government relaxed gun regulations, a doctor could sue if it led them to treat more gunshot victims. It “would allow doctors to sue in federal court to challenge almost any policy affecting public health,” he wrote.

As to the organizations’ claim that the FDA regulations injured them by forcing them to divert time and resources from other issues, Justice Kavanaugh wrote that an organization that hasn’t suffered a concrete injury “cannot spend its way into standing ... in that way.”

More abortion court battles ahead

The most direct consequence of the ruling is that it preserves mifepristone access as it stood prior to the lawsuit. But abortion rights supporters are anticipating more legal battles.

“We are relieved by this decision,” says Amy Friedrich-Karnik, director of federal policy at the Guttmacher Institute. But anti-abortion groups and policymakers, she adds, are “going to continue to be relentless in going after access to abortion care in the country.”

While many anti-abortion groups didn’t criticize the substance of the court’s decision Thursday, they did note that the merits of the arguments around the FDA’s mifepristone regulations remain unresolved.

In particular, they latched onto Justice Kavanaugh’s passage that the plaintiffs did not “prescribe, manufacture, sell or advertise” mifepristone, and that they didn’t “suffer direct monetary injuries” from the FDA regulations.

“That right there, it almost provides that path, that direction,” says Catherine Glenn Foster, CEO of First Rights Global and senior fellow in legal policy at the Charlotte Lozier Institute.

The decision “leaves a lot for another day, and the court kind of points the way for another day,” she adds. “There’s a lot of meat there with the merits. There’s a lot to discuss about whether the FDA should’ve taken the actions that they have, the impact of those actions, the harms to women.” 

Indeed, the reaction to Thursday’s decision has poured even more cold water on the court’s hope, when it overturned Roe in 2022, that abortion questions would be left to the states and their elected representatives.

In coming weeks, the Supreme Court will decide another abortion case, concerning the extent to which states can restrict abortion when it’s deemed necessary to save the life of the mother. A group of states has already said it’s willing to challenge the FDA’s mifepristone regulations, and states may be able to make a stronger standing argument, says Rachel Rebouché, dean of the Temple University Beasley Law School.

“That’s the world we live in [now]. We should expect this kind of conflict between an agency [and] a state ... between states themselves,” she says.