Looking to the Future: Implications of the SCOTUS Ruling on Mifepristone

SCOTUS has ruled on the Alliance for Hippocratic Medicine v. FDA, a case that had the potential to severely restrict access to mifepristone, one of the pills used in the medication abortion regimen across the nation. The verdict was unanimous. The defendants lacked standing to sue the FDA for injury.

So, what does this mean for access to medication abortion pills? The status quo is unchanged. The ruling preserves abortion access to mifepristone. Today, over 6 in 10 abortions are medication abortions, and according to data from #WeCount, a national study that is tracking use of abortion services after Dobbs, many of those pills are going to women who live in states where abortion is banned. One in five abortions are provided to pregnant people through telemedicine. This newer approach to distribution is a result of the changes in the FDA’s protocol regarding how mifepristone can be prescribed and dispensed and by whom. Telemedicine visits and mailing the pills are still approved, and advance practice clinicians and doctors can distribute if they are certified. Many states without abortion bans also restrict access to telemedicine by requiring in-person visits for abortions or mandating that all abortion patients receive an ultrasound.

In addition to the abortion issues, there was potential for this case to set a precedent for doctors to challenge FDA decisions and the Court to overrule an FDA action that was based on years of experience and research. In fact, the Court did not even get to this issue and decided that there was no evidence of harm to the plaintiffs and sent it back to the lower court. This lawsuit not only got the attention of those focused on abortion, but also the pharmaceutical industry, which was troubled about what this case could mean for the other drugs that have long been approved but could be caught in the crosshairs of today’s culture wars.

While this decision preserves the status quo, there will be other efforts to limit access to medication abortion, which has been a major avenue of abortion access for those who live in one of the 14 states where abortion is completely banned.

A few things to keep in mind:

• While SCOTUS has said that these anti-abortion doctors and organizations lack standing, there are other cases that are still trying to ban or limit access to mifepristone, notably including anti-abortion state Attorneys’ General who have intervened in this case. It’s not clear how this action will shape the case when it goes back to the 5th Circuit Court of Appeals and then back to the originating federal court, presided over by anti-abortion conservative Judge Kacsmaryk in Amarillo, Texas.

• A new Louisiana law that has classified mifepristone (and misoprostol) as Class IV controlled substances which will even further restrict access to these drugs. Louisiana already has a complete abortion ban. Look for other anti-abortion states to start copying this law.
• On the abortion rights side, there is a pending case filed by the state AGs, led by Washington state. It’s the mirror image of the anti-abortion state claims. They are claiming that the FDA does not need to place any restrictions on how mifepristone can be dispensed, and that the medication should be available without the current restrictions. Some anti-abortion states sought to intervene in this case, but the district court denied their request. The 9th Circuit Court of Appeals heard their appeal of this motion in March and will likely rule soon.
• Finally, potentially looming on the horizon is whether the Comstock Act , an 1873 anti-vice law that has not been enforced in many years, will be resurrected. Enforcing the Comstock Act has been raised as priority issue by a coalition of conservative anti-abortion groups seeking to advise Trump on priorities for his next administration should he win the election. Democrats are exploring options to repeal the law.

Access to mifepristone is a significant resource for abortion access and is going to be a central focus to efforts to both protect and limit abortion access.

While the Court has ruled, the case for mifepristone access is not closed.