Supreme Court decision keeps mifepristone available
Unanimous ruling based on the lack of standing for plaintiffs challenging FDA approval
Mifepristone remains available after the Supreme Court ruled that plaintiffs challenging its legality lacked standing.
The highly-anticipated decision, FDA v. Alliance for Hippocratic Medicine, followed a dispute between antiabortion doctors and the Food and Drug Administration. The case has enormous ramifications for abortion care across the country.
Despite the temporary win, there are looming threats and a possibility that a Republican presidency could restrict access through future decisions by the agency that sought to keep its authority to prescribe medication in this case.
I reported on this last week, but in a conservative manifesto, Project 2025, Republican intellectuals called for the FDA to rescind approval of mifepristone should they win this presidential election. Furthermore, the Justice Department may still enforce Comstock laws, written before Roe and never repealed. That legislation prohibits the mailing of abortifacients. Since the rules were written in an archaic time, lawmakers didn’t consider whether the FDA would approve drugs that would cause abortion.
Justice Brett Kavanaugh, in the unanimous decision, said as much. He characterized the regulation as “relaxed.”
“The plaintiffs may present 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.”
I’ll report more on the Supreme Court this month, with expertise provided by lawyers, law professors, and activists. Today, I spoke to Rachel Fey, Vice President of Policy and Strategic Partnerships at Power to Decide, an organization dedicated to advancing reproductive access. She said this wasn’t a big win. It was just the bare minimum.
“We need to recognize that this is bigger than the states where it is banned right now,” Fey said. “This is a whole country issue, and the same is true for the EMTALA issue. This could affect folks far beyond Idaho, who brought the suit.”
The Supreme Court is currently considering another case in which it will decide if an antiabortion law in Idaho trumps the Emergency Medical Treatment & Labor Act, which requires that doctors provide life-saving care in ER settings, including when an abortion is called for.
The court made a minor ruling today in which it held that EMTALA didn’t violate conscience protections in situations where a doctor would be personally against abortions and unwilling to perform them.
“I would say that I am very concerned about what that policy outlook looks like,” Fey said. “I am also very concerned about what the anti-abortion movement has in mind, both for abortion, for contraception, for IVF, and for all the ways in which reproductive healthcare is interconnected.”