Earlier this week, we looked at the Texas case of a woman who petitioned the court for an injunction to allow a medically necessary abortion recommended by her doctor. Now, we turn our attention to the US Supreme Court, which is about to hear a controversial case concerning an abortion drug and whether access to it should be limited. This is the first time the high court has taken up reproductive rights since the overturning of Roe v. Wade last year. Let’s get into the details.
What’s at Issue?
The Biden administration and the drug manufacturer of mifepristone have asked the justices to reverse a lower court federal appeals ruling which in effect limits access to the abortion drug and has made it more challenging to obtain the medication. The drug at issue is mifepristone –a drug that is taken in conjunction with another drug –and is currently one of the most common abortion methods in the United States.
On Wednesday, the Supreme Court announced they would review the decision from the 5th Circuit, which ruled that the Food and Drug Administration (FDA) “did not follow proper procedures when it began loosening regulations for obtaining mifepristone, which was first approved more than 20 years ago.”
While the case is pending, the justices stated that existing rules for prescribing and accessing mifepristone would remain unchanged nationwide. The justices also announced they would not consider a separate challenge to the FDA’s approval of mifepristone in 2000. This means that even if the Supreme Court decides to limit access to the drug in its decision, the medication will remain on the market –however, it will become more challenging to access.
Who are the Parties?
The Biden Administration, the FDA, the drug manufacturer, and affiliated parties are on one side of the aisle. U.S. Solicitor General Elizabeth B. Prelogar stated in court filings that mifepristone has been on the market for over two decades and has been safely used by millions. She warned that allowing the lower court’s decision to stand would have “damaging consequences” for women seeking lawful abortions under a healthcare system that “relies on the availability of the drug under current conditions of use.”
The original lawsuit challenging access to mifepristone was brought by the Alliance for Hippocratic Medicine, “an association of antiabortion doctors and others.” The Alliance filed a lawsuit in Amarillo, Texas, where the court sided with them and suspended FDA approval of mifepristone. Following this decision, the 5th Circuit reversed part of that court’s decision but agreed with its decision to limit how the drug was prescribed and distributed in addition to agreeing on qualifying the point in a pregnancy where it could be used.
What are the Implications for Women, States, and Federal Agencies?
If the Supreme Court decides to uphold the 5th Circuit decision and access to mifepristone is restricted, “abortion advocates say pregnancies could still be terminated using only the second drug in the regimen, misoprostol.” However, they argue that by only using the second drug, women will experience more negative symptoms, and “abortion opponents could move to restrict its use as well if they win limits on the use of mifepristone from the high court.”
The Supreme Court’s decision could also impact access to abortion across the states –some of which have already severely limited or outlawed it in response to the overturning of Roe v. Wade. If the Supreme Court sides with the 5th Circuit, mifepristone would not be allowed to be accessed via telemedicine or mail –even in a state where abortion is legal. As of now, in states where abortion is banned, patients can still get the drug through the mail.
Also central to this dispute is the scope of the FDA’s authority to regulate abortion drugs. Approved in 2000, the FDA has since modified rules on dosage and dispensing requirements, making the drug more easily accessible and allowing for it to be taken later in pregnancy. Proponents of the FDA argue that if the Supreme Court sides with the 5th Circuit, it will undermine the FDA’s regulatory responsibilities to fulfill statutory obligations according to its scientific judgment. This could have broader implications for government agencies if the court decides to limit their administrative power.
The Supreme Court will likely hear oral arguments on this case next spring, and a decision could be issued by the end of June 2024. It will probably be a highly contested point during the 2024 campaign season in light of the upcoming presidential election. As lawsuits concerning reproductive rights continue across the country, courts and legislators will continue to navigate post-Roe v. Wade legal conundrums.
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Sources:
https://www.washingtonpost.com/politics/2023/12/13/abortion-drug-supreme-court-mifepristone-fda/
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