Supreme Court won’t restrict access to abortion pill

Thursday’s decision shifts the spotlight to conservatives’ other strategies to limit access to the drug, such as lobbying state legislators to pass laws prohibiting its use and paving the way for new restrictions in a potential second Trump administration. The high court’s decision does not prevent future administrations from rolling back access to mifepristone; it merely holds that anti-abortion doctors have not suffered the sort of harm from the FDA’s current policies that would allow them to sue in federal court.

“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,” Justice Brett Kavanaugh wrote for the court.

“Here, the plaintiffs have failed to demonstrate that FDA’s relaxed regulatory requirements likely would cause them to suffer an injury in fact. For that reason, the federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions.”

Allowing the doctors to proceed with their lawsuit, Kavanaugh warned, would open a Pandora’s Box of cases that could swamp the courts.

“If we were now to invent a new doctrine of doctor standing, there would be no principled way to cabin such a sweeping doctrinal change to doctors or other healthcare providers,” the Trump appointee wrote. “Firefighters could sue to object to relaxed building codes that increase fire risks. Police officers could sue to challenge a government decision to legalize certain activities that are associated with increased crime. Teachers in border states could sue to challenge allegedly lax immigration policies that lead to overcrowded classrooms. We decline to start the Federal Judiciary down that uncharted path.”

The ruling — the most consequential for reproductive health since the court overturned Roe v. Wade two years ago — is also a major victory for the Biden administration, preserving one of its most consequential steps to shore up abortion access after the fall of Roe. It comes as President Joe Biden makes abortion rights a centerpiece of his re-election argument and seeks to hold Trump responsible for the “chaos” in states with strict anti-abortion laws.

The case was brought by a group of anti-abortion doctors called the Alliance for Hippocratic Medicine, which formed in Texas following the high court’s 2022 Dobbs ruling that overturned Roe. The group claimed that its members could be forced to treat patients who took abortion pills and needed follow-up care, a violation of their religious or moral values unless access to the drugs was rolled back.

The court’s liberal wing and even some of its conservative justices appeared skeptical of those arguments when they heard the case in March, noting that the pills’ complication rate is low, that many of the group’s members are not actively practicing medicine, and that some of the studies on the pills’ risks that the doctors relied on have since been retracted. During oral arguments, several justices questioned whether the physicians had standing to sue and whether the nationwide restrictions on the pills they demanded were an appropriate remedy.

In the unanimous ruling, the court said that in the event that an anti-abortion doctor was called upon to treat a patient who took abortion pills and needed medical help completing the abortion, that doctor could simply invoke their existing conscience protections and refuse to participate.

Erin Hawley with the conservative group Alliance Defending Freedom, who argued the case on behalf of the doctors, told reporters Thursday that it was a silver lining to an otherwise “disappointing” decision.

“The Supreme Court was crystal clear that pro life doctors do have federal conscience protections, even in emergency situations,” she said.

While the high court’s ruling Thursday made no mention of the court’s seismic decision in Dobbs, there were echoes. The conservative justices emphasized then that they were not resolving the long-running debate over abortion, but returning it to the political sphere.

Kavanaugh took a similar tack in the new opinion, contending that the court was not trying to foreclose further debate or government action on the issue of abortion or on the availability of medication abortion. He read extended portions of the opinion emphasizing that point from the bench as the court released the opinion on Thursday.

“The plaintiffs may present their concerns and objections to the President and FDA in the regulatory process, or to Congress and the President in the legislative process. And they may also express their views about abortion and mifepristone to fellow citizens, including in the political and electoral processes,” he declared.

In a concurring opinion, Justice Clarence Thomas took aim at attempts by doctors on both sides of the abortion fight to bring lawsuits on behalf of their patients — a common practice because the time-sensitive nature of pregnancy means patients are often unwilling or unable to mount their own challenges, and because anti-abortion laws generally target doctors but not patients.

“Just as abortionists lack standing to assert the rights of their clients, doctors who oppose abortion cannot vicariously assert the rights of their patients,” wrote Thomas, an appointee of President George H.W. Bush.

Abortion rights groups celebrated the Thursday decision but stressed that it merely upheld a status quo they consider unacceptable, and demanded the Biden administration further loosen restrictions on mifepristone to allow any doctor to prescribe it and any pharmacy to dispense it.

“If this case has demonstrated anything, it is that we must ramp up our efforts to protect — and further increase access to — mifepristone,” said Stella Dantas, the president of the American College of Obstetricians and Gynecologists. “We call for the FDA to drop the remaining REMS requirements, which do not enhance the drug’s safety profile and instead only continue to impose burdens on and create barriers for those who prescribe and those who need mifepristone.”

The groups also cautioned that Thursday’s ruling may not end the legal challenge to mifepristone. The decision doesn’t preclude a new suit by physicians with better evidence that they are likely to be affected by broader use of the drug, although such a challenge would likely be an uphill battle due to the breadth and unanimity of the high court’s decision.

However, the district court judge overseeing the suit that reached the Supreme Court recently allowed three GOP-led states to join the case — Idaho, Kansas and Missouri.

“I would expect the litigation to continue with those states raising different standing arguments than made by our doctors,” Hawley said.

Additionally, the Supreme Court case decided Thursday is just one of many strategies abortion opponents are pursuing to restrict the use of mifepristone, which is used in tandem with another drug, misoprostol.

Some depend on Trump winning another term and directing federal agencies to curtail access to the pills or remove them from the market. Trump allies are also drafting plans to enforce the 150-year-old Comstock Act — a long-dormant federal law that bans mail delivery of any “lewd or lascivious material,” including any “instrument, substance, drug, medicine, or thing” that could be used for an abortion. Abortion opponents see Comstock as a path to a de facto national ban because it would criminalize not only the delivery of pills to patients’ homes but also the mailing of pills and medical equipment to clinics and hospitals.

Anti-abortion groups also have strategies that can advance regardless of the outcome in November — leaning on state legislators, GOP state attorneys general, right-leaning judges and grassroots pressure campaigns.

Louisiana in May enacted a law designating mifepristone and misoprostol controlled substances, while other states — including North Carolina and West Virginia — have imposed restrictions that the federal government deemed medically unnecessary, including the requirement that patients make multiple in-person visits to a doctor to obtain the drugs.

Americans United for Life and other groups have model legislation for states they hope will join those ranks, including policies such as ultrasound requirements, mandatory waiting periods, and specific scripts doctors are required to read to patients before prescribing the pills.

Conservative activists also plan to continue pressuring major pharmacy chains that this year began stocking the drugs — including Walgreens and CVS — to cease doing so, with petitions, boycotts and demonstrations at their corporate headquarters and stores.

Abortion-rights proponents and physician groups that weighed in on the Supreme Court case — including the American Medical Association — argue that restricting access to the drugs will put patients at risk, as mifepristone and misoprostol are both used for other purposes, including treatment for miscarriage and ulcers. The groups have also echoed arguments made by the Biden administration that allowing judges to second guess the medical expertise of the FDA undermines the entire drug approval system and would deter companies from submitting new medications for approval.

The Supreme Court is poised to rule on another major abortion case in the coming weeks, a showdown between Idaho Republicans and the Biden administration over access to abortion for patients experiencing a life- or health-threatening medical emergency.