The Fight Over the Abortion Pill Is Only Just Beginning

Shuran Huang for The Washington Post via Getty Images
Shuran Huang for The Washington Post via Getty Images

Abortion rights advocates celebrated the Supreme Court’s decision to toss out a challenge to the abortion pill Thursday, calling it a “unanimous win” and “incredibly good news” for reproductive freedoms.

But the fight over the abortion pill—the two-drug regimen that makes up more than 60 percent of abortions in the US—is far from over.

“This case really represents the kind of opening shot on the anti-abortion movements’ attack on abortion pills,” Greer Donley, a law professor at the University of Pittsburgh, told The Daily Beast. “The very beginning, not even close to the end.”

The Supreme Court ruled unanimously Thursday that the group of conservative doctors who sued to roll back the FDA’s approval of mifepristone—one of the drugs most commonly used in medication abortions—did not have standing to bring the case because they did not prescribe or use the medication themselves.

Even Brett Kavanaugh Tears Anti-Abortion Lawsuit Apart

The case was first brought by the Alliance for Hippocratic Medicine (AHM), an umbrella organization of anti-abortion doctors who argued that the FDA had not adequately considered safety concerns when it expanded access to mifepristone in 2016. (Studies have shown the drug is safer than penicillin and Viagra.)

The medication is a prime target for conservatives because of how often it is used to perform abortions and how relatively easy it is to dispense. Doctors in states where abortion is legal have been prescribing abortion pills to patients in states where it was banned since the fall of Roe v Wade in 2022, much to the chagrin of Republican politicians.

The Supreme Court did not rule on the merits of the AHM suit, simply on the doctors’ ability to bring it. While that decision allows mifepristone to continue being used in medication abortions for now, experts said, it leaves the door open for other attacks on the drug.

Three states–Idaho, Missouri, and Kansas–joined the dispute in a lower court in Texas earlier this year. The Supreme Court did not allow them to join at the federal level, but they are now free to proceed in the state court—the same one that sided with the AHM and blocked mifepristone access nationwide before higher courts stepped in.

The AHM specifically mentioned those states in a defiant statement it issued after the ruling, saying it was “disappointed with the court’s decision” but would “continue to advocate for women and work to restore commonsense safeguards for abortion drugs.”

“We are grateful that three states stand ready to hold the FDA accountable for jeopardizing the health and safety of women and girls across this country,” the Alliance said.

In a briefing with reporters, Erin Hawley—the lawyer who argued the AHM’s case and the wife of Republican Sen. Josh Hawley—said the fact that the court did not rule on the merits of the case left her “encouraged and hopeful that the FDA will be held to account,” according to NPR.

A general view of the U.S. Supreme Court building, with members of a student group in the foreground, in Washington, U.S., June 1, 2024.

A general view of the U.S. Supreme Court building, with members of a student group in the foreground, in Washington, U.S., June 1, 2024.

Will Dunham/File Photo/Reuters

Mary Ziegler, a law professor at the University of California, Davis, told The Daily Beast there were plenty of other groups looking to mount their own court battle if the states failed.

“Some of the cities and counties that define themselves as ‘sanctuary cities for the unborn’ have suggested they want to do that,” she said. “So we’re not limiting it to just the people who have already proceeded, but the people who could.”

And the fact that the AHM case made it to the Supreme Court at all can be seen as a victory for the right, Greer added—as well as a sign of how partisain the courts have become. She said the plaintiff’s case for standing was shaky at best, and should have been dismissed by the first judge on the case, the Trump-appointed Texas district court judge Matthew Kacsmaryk.

“Matthew Kacsmaryk, is an ideologue, essentially,” Greer said. “He basically rubber stamps whatever the anti-abortion movement throws at him. So you're left with the Supreme Court being the only place that you can attempt to have a fair hearing.”

“And of course, we’re talking about the Supreme Court that overturned Roe v Wade,” she added. “So we’re not talking about a moderate Supreme Court.”

There are also risks to the abortion pill outside the courts, especially if Donald Trump is elected president in November. According to Greer, Trump could appoint his own head of the FDA and direct them to overturn the agency’s approval of mifepristone, arriving at much the same outcome as if the Alliance had won at the Supreme Court.

Trump’s allies are also pushing for him to enforce the Comstock Act, a long-defunct law that bans anything used in an abortion from being sent by mail. If he is successful in enforcing it, the law would threaten anyone who sent abortion drugs by mail with jail time.

The Biden-Harris campaign hosted a press call shortly after the verdict to impress upon voters the effects a Trump presidency could have on access to the pill.

“This case brought on by Donald Trump’s allies was only one tactic in a broader, relentless strategy to strip away access to reproductive freedom everywhere in this country,” campaign manager Julie Chávez Rodríguez told reporters, adding that a Trump presidency would threaten access to the medication “in every single state—even where abortion remains legal.”

And other abortion advocates acknowledged Thursday that the case was only the opening salvo in the war against medication abortion. Brittany Fonteno, President and CEO of National Abortion Federation, said in a statement that the group was “outraged that this case got as far as it did in the first place,” adding that it was “part of anti-abortion extremists’ wider, politically-motivated agenda to ban abortion nationwide.”

Cecile Richards, former president of Planned Parenthood, told The New York Times that other states were already attempting to make abortion pills harder to get, noting how Louisiana recently made the medication a controlled substance.

“I know from years of experience that women will do anything to end a pregnancy that they don’t want, and I fear that what the Supreme Court is doing, and anti-abortion politicians, they’re just making it more difficult, more costly, and threatening women’s health and their lives,” she said.

Read more at The Daily Beast.

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