Mifepristone, FDA-approved for pregnancy termination up to 10 weeks gestation, is used in about 63% of U.S. abortions. (Chris Coduto | Getty Images)
In the aftermath of the U.S. Supreme Court’s unanimous ruling Thursday to maintain current access to the abortion medication mifepristone, abortion-rights advocates and opponents vowed to continue their respective battles over the drug.
Mifepristone is one of two drugs used to treat miscarriages and terminate a pregnancy during the first trimester, and is the most common method of abortion in the U.S. Anti-abortion groups, in conjunction with conservative religious law firm Alliance Defending Freedom, sought to revert the FDA guidelines to 2016, when the prescribed gestational time frame was three weeks shorter and there were more requirements around who could prescribe it and where and when provider visits had to take place. The case made its way to the nation’s highest court after outspoken anti-abortion U.S. District Judge Matthew Kacsmaryk in Texas ruled that mifepristone’s approval should be revoked, followed by a Fifth Circuit Court of Appeals opinion that agreed in part, saying the restrictions should revert to pre-2016 rules.
In a unanimous decision rejecting the anti-abortion groups’ challenge to the U.S. Food and Drug Administration’s regulation of the drug, justices agreed that the case lacked standing, saying there was no clear injury to the plaintiffs to warrant reinstating the restrictions.
“The plaintiffs do not prescribe or use mifepristone. And FDA is not requiring them to do or refrain from doing anything. Rather, the plaintiffs want FDA to make mifepristone more difficult for other doctors to prescribe and for pregnant women to obtain,” Justice Brett Kavanaugh wrote in the opinion. “Under Article III of the Constitution, a plaintiff’s desire to make a drug less available for others does not establish standing to sue.”
Wendy Heipt, attorney for advocacy organization Legal Voice, said the fact that the unanimous ruling is focused on standing is helpful, because that’s an area of law that has been in question in many reproductive rights-related cases since the Dobbs decision in 2022.
“I’m not relaxing; it’s not over. But the fact that this one rogue judge in Texas opened the courthouse doors to people who had no right to be there was a real challenge to the way our judicial system works, so I am reassured that there are still rules,” Heipt told States Newsroom.
Many reproductive rights and medical organizations issued statements following the ruling, including the Guttmacher Institute, a reproductive rights research organization that has closely tracked abortion pill use in the two years since the Dobbs decision.
“We are relieved by this outcome, but we are not celebrating,” said Destiny Lopez, acting co-CEO of the Institute, in a statement. “From the start, this case was rooted in bad faith and lacking any basis in facts or science. This case never should have reached our nation’s top court in the first place and the Supreme Court made the only reasonable decision by leaving access to medication abortion using mifepristone unchanged.”
Nikki Madsen, co-executive director of the Abortion Care Network, said she wasn’t surprised by the ruling, but noted it only preserves the status quo.
“It’s just not enough,” Madsen told States Newsroom. “We know that the anti-abortion extremists are relentless, and their goal is to truly chip away at any abortion access. So today’s decision just preserves access, but it’s really not enough for the people across the country who are truly navigating a human rights crisis right now.”
Three intervenor states expected to continue fight at district court level
Alliance Defending Freedom, the conservative law firm that argued the case, is the same organization that argued in favor of the Dobbs decision that returned abortion regulation to the states. In a statement, ADF attorney Erin Hawley said the ruling was disappointing, but that they will continue to “advocate for women’s health.”
“The FDA recklessly leaves women and girls to take these high-risk drugs all alone in their homes or dorm rooms, without requiring the ongoing, in-person care of a doctor,” Hawley said, adding that ADF is grateful to attorneys general in Idaho, Kansas and Missouri who successfully intervened in the case at the district court level with Kacsmaryk’s approval, because they intend to keep litigating the case there.
In a statement posted on X on Thursday, Missouri Attorney General Andrew Bailey wrote, “Today’s ruling only applies to standing; the court did not reach the merits. My case is still alive at the district court. We are moving forward undeterred with our litigation to protect both women and their unborn children.”
Bailey’s spokesperson did not give any further details about what that case would look like, and Idaho Attorney General Raúl Labrador’s office did not respond to a request for comment.
According to Susan B. Anthony Pro-Life America, a national anti-abortion organization, those attorneys general will move forward with the case “based on harms suffered by women in their states.”
Abortion opponents target abortion drugs from multiple angles
Anti-abortion opponents have been fighting against the expansion of access to medication abortion since the FDA first approved the regimen in 2000, and they say they are not deterred by Thursday’s ruling.
“The Justices simply discussed the issue of legal standing and did not reach the merits of the case,” Carolyn McDonnell, litigation counsel at national anti-abortion policy shop Americans United for Life, told States Newsroom in a statement. “It’s still an open question whether the FDA unlawfully deregulated mifepristone.”
Longtime anti-abortion activist Rev. Pat Mahoney said the Supreme Court’s decision in this case was instructive, providing abortion opponents a partial road map in their fight against abortion medication. (Courtesy of Pat Mahoney)
Longtime anti-abortion activist Rev. Pat Mahoney, chief strategy officer for the Stanton Public Policy Center, said the Supreme Court’s decision in this case was instructive, if not what abortion opponents wanted.
“There’s, I think, a misconception that a loss is a loss, and that isn’t always the case,” Mahoney told States Newsroom. “Sometimes a loss helps define the parameters for bringing the next case and next case, and believe me, there are going to be next cases on medical and chemical abortions. So now we know this isn’t a route to go.”
Mahoney said that like past legal defeats for the anti-abortion movement, this ruling offers at least a partial road map, such as the one abortion opponents followed after the Supreme Court ruled in 1992’s Planned Parenthood v. Casey that abortion until fetal viability was a federal right but that states could pass regulations that didn’t create an “undue burden” for people seeking abortions.
That ruling led to hundreds of restrictions and regulations around the country that kept nudging the viability and undue burden lines — limiting abortion access even before Roe v. Wade was overturned. Mahoney said his organization and others are pursuing various legislative proposals, such as regulating the disposal of embryonic and fetal remains following a medication abortion, which most people have at home or in private settings.
Americans United for Life said in a statement following the ruling that it “will continue to offer legal prescriptions for the strengthening of protections for unborn children from abortion pills through action on the federal and state levels in both executive and legislative branches of government, including through executive enforcement of the Comstock Act and RICO Act.”
Ever since Roe v. Wade was overturned, resurrecting the long-dormant Comstock Act to ban the mailing of abortion drugs and equipment (something legal scholars and historians say is an inaccurate interpretation of the law and how it was applied) has been the long-term focus of East Texas pastor Mark Lee Dickson and his partner Texas attorney Jonathan Mitchell.
They have been pushing various legal and legislative strategies to prevent people from obtaining abortions in states where it’s still legal. They have helped pass dozens of local ordinances in Texas and other states with restrictions that challenge current federal law, such as banning interstate travel to obtain an abortion. In New Mexico, where abortion is legal and largely unrestricted, a challenge to two local ordinances based on the Comstock Act await a ruling from the New Mexico Supreme Court.
The U.S. Supreme Court did not address the Comstock Act in its opinion, but Kascmaryk cited the old law in his initial ruling last year. Major conservative groups are pushing former President Donald Trump, if reelected this fall, to enforce the Comstock Act along with other federal abortion regulations. Trump has stayed silent about what he will do.
In the meantime, anti-abortion groups have not stopped pursuing other cases.
“I can confirm that there are several attorneys in the pro-life movement that are planning on bringing a number of different lawsuits relating to abortion-inducing drugs and the harm that they cause to mothers and their unborn children,” Dickson told States Newsroom.
Mahoney also said groups like his are working with attorneys on a potential class-action lawsuit against abortion-pill manufacturers. He said they are “actively gathering testimony and information from women who have been hurt through medical chemical abortions.”
“We’re working on it,” said Mahoney, adding, “It took us 50 years to overturn Roe.”
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