The availability of a common abortion pill will remain unchanged, the US supreme court ruled on Thursday in a unanimous 9-0 decision, handing a major victory to abortion rights supporters who feared that the court that overturned Roe v Wade just two years ago would further hack away at access to the procedure.
Conservative bloc
Alito – Majority
Barrett – Majority
Gorsuch – Majority
Kavanaugh – Majority
Roberts – Majority
Thomas – Majority
Liberal bloc
Jackson – Majority
Kagan – Majority
Sotomayor – Majority
The case, a consolidation of Food and Drug Administration v Alliance for Hippocratic Medicine and Danco Laboratories LLC v Alliance for Hippocratic Medicine, dealt with the FDA’s ability to regulate mifepristone, one of two drugs typically used in medication abortions, which now make up more than 60% of all US abortions and have become a major target of anti-abortion activists. A coalition of abortion opponents had tried to persuade the supreme court to roll back a series of moves by the FDA to expand access to the drug, such as allowing abortion providers to mail mifepristone to patients – a request that the justices met with skepticism in the case’s March arguments.
The abortion opponents claimed that, if the FDA’s current regulations of mifepristone were allowed to remain, anti-abortion doctors could suffer harm if they have to treat women who experience complications from mifepristone. But in Thursday’s majority opinion, Justice Brett Kavanaugh rejected that argument, ruling that the anti-abortion activists did not prove that they had the legal right, or standing, to bring the case in the first place.
“Because the plaintiffs do not prescribe, manufacture, sell, or advertise mifepristone or sponsor a competing drug, the plaintiffs suffer no direct monetary injuries from FDA’s actions relaxing regulation of mifepristone,” Kavanaugh wrote. “Nor do they suffer injuries to their property, or to the value of their property, from FDA’s actions. Because the plaintiffs do not use mifepristone, they obviously can suffer no physical injuries from FDA’s actions relaxing regulation of mifepristone.”
The unanimous ruling marked a rare moment of consensus on abortion.
Only Justice Clarence Thomas, one of the most hardline conservative justices on the court, wrote a concurring opinion that dealt primarily with the legal nuances of standing, arguing that so-called “abortionists” – a term widely seen as derogatory among abortion providers – should also lack standing to sue on behalf of their patients.
Rightwing judges have long complained that it is too easy for abortion providers to challenge restrictions on the procedure, according to Mary Ziegler, a professor at the University of California, Davis, who studies the legal history of reproduction. But given the supreme court’s 6-3 conservative majority, she said “no abortion provider in their right mind is going to be spending a lot of time trying to litigate to get to the supreme court now”.
Members of Congress hailed the decision. “This is a massive victory for abortion access, but there is no question – we must codify access to reproductive care nationwide,” Representative Pramila Jayapal, a Democrat from Washington, posted on X.
“This challenge to mifepristone was meritless from the start. Abortion medication is safe and effective,” Senator Elizabeth Warren, a Massachusetts Democrat, added on X. “Make no mistake: Donald Trump and Republican politicians will not stop marching us toward a nationwide abortion ban. We must protect reproductive freedom everywhere.”
Although the ruling did please abortion rights activists, many had similar reactions to Warren.
“We’re relieved that the supreme court recognized this sham case for what it is, but this baseless push to block abortion access should never have been heard by them in the first place,” Mini Timmaraju, CEO and president of Reproductive Freedom for All, said. “We need court reform to salvage the legitimacy of our federal judiciary – and we won’t stop fighting for it until it’s a reality.”
Given that the outcome of the case rested on standing, there is a chance that other plaintiffs may continue challenging access to mifepristone. Three states have already joined the case as plaintiffs at a lower-court level. If Donald Trump wins the presidency in November, he may also try to restrict access to mifepristone through a 19th-century anti-obscenity law.
The supreme court has also not yet ruled on its second abortion case from this term, which deals with a federal law that mandates that hospitals stabilize the health of patients who show up at their emergency rooms with medical emergencies. The Biden administration and the state of Idaho have clashed over whether this law requires doctors to perform emergency abortions.
“Today’s decision does not change the fact that the fight for reproductive freedom continues. It does not change the fact that the supreme court overturned Roe v Wade two years ago, and women lost a fundamental freedom,” Joe Biden said in a statement. “It does not change the fact that the right for a woman to get the treatment she needs is imperiled if not impossible in many states.”
The president, as he has repeatedly done from his re-election campaign trail, called on Congress to codify Roe’s protections into law.
Had the abortion opponents won, the ruling could have had consequences for every medication regulated by the FDA, including other kinds of politicized drugs such as vaccines, HIV medications and drugs used in gender-affirming healthcare.
Danco Laboratories, a manufacturer of mifepristone and a petitioner in the case, applauded Thursday’s opinion, which reversed and remanded a ruling from the fifth circuit court of appeals that would have rolled back the FDA’s efforts to expand mifepristone access.
“By rejecting the fifth circuit’s radical, unprecedented and unsupportable interpretation of who has standing to sue, the justices reaffirmed longstanding basic principles of administrative law,” Abigail Long, an executive at Danco, said in a statement. “In doing so, they maintained the stability of the FDA drug approval process, which is based on the agency’s expertise and on which patients, healthcare providers and the US pharmaceutical industry rely.”
