Photo courtesy of Wikimedia Commons.
By Sydney Wiser ʼ27
Staff Writer
The U.S. Supreme Court has begun deliberations over the case that will determine accessibility to the most commonly used abortion medication in the country, mifepristone. The Food and Drug Administration v. Alliance for Hippocratic Medicine began oral arguments on Tuesday, March 26, and a decision is expected by the summer, according to The Washington Post.
In 2023, mifepristone became the most commonly used abortion treatment in the United States, accounting for over 60% of abortion treatments, the Post reported. It has become a more accessible abortion treatment, particularly for Americans living in rural areas where there are few clinics and for those living in states with strict abortion laws.
The Washington Post also reported that accessibility to mifepristone increased in 2016 and 2021 when the FDA loosened restrictions on the medication. Patients can now be prescribed mifepristone by any medical professional, have the medication mailed to them without an in-person medical consultation beforehand and take the medication up until their 10th week of pregnancy. However, after the 2022 Dobbs v. Jackson Women's Health Organization decision, which overturned Roe v. Wade, 14 states passed near-total abortion bans, which has decreased access to the medication for patients living in those states.
Should the Supreme Court rule in favor of the Alliance for Hippocratic Medicine, access to abortion could be severely limited nationwide, especially for Americans living in states that have tightened their restrictions on abortion after the overturning of Roe v. Wade in 2022.
Increasing restrictions on mifepristone does not entirely eliminate Americans’ abortion medication options. According to Associate Professor and Chair of the Politics Department Cora Fernandez Anderson, in many countries where abortion is illegal, another drug, misoprostol, is used for safe and effective abortion treatment. CNN reports that misoprostol is approved by the FDA to treat gastric ulcers and used in abortion treatment to empty the uterus through muscle contractions and bleeding. In the United States, mifepristone is paired with misoprostol to increase the treatment success rate and reduce pain.
Without easy access to mifepristone, however, Fernandez Anderson says that “Americans will be stripped of the right to have access to the best methods to exercise their reproductive rights.”
NPR reported that the case emerged when the Alliance for Hippocratic Medicine and other anti-abortion physicians sued the FDA shortly after the Dobbs v. Jackson Women's Health Organization decision, which overturned Roe v. Wade in 2022. They argued that the FDA failed to study the safety of the medication and chose “politics over science” when it originally approved mifepristone in 2000, according to the complaint document from the Alliance for Hippocratic Medicine and the anti-abortion physicians suing the FDA.
In April 2023, a federal district court judge sided with the Alliance for Hippocratic Medicine, the New York Times reported. However, the Fifth Circuit Appellate Court overruled that decision and maintained the FDA’s 2000 approval, opting instead to strike down the changes the FDA made to mifepristone accessibility in 2016. Now that it has reached the Supreme Court, the scope of the case has been narrowed and the justices will determine if the changes the FDA made in 2016 and 2021 that increased access to mifepristone should be maintained.
After oral arguments on March 26, major news outlets, including The New York Times and The Washington Post, reported that the Court seemed likely to reject the Alliance for Hippocratic Medicine’s challenge to mifepristone.
Assistant Professor of Politics Joanna Wuest explained that the justices could conclude that the anti-abortion physicians lack legal standing to bring this case to the Court. Under Article III of the Constitution, to sue the government, the plaintiff must prove that they have been harmed in some way. “These physicians have opposed the FDA’s mifepristone regulations based on hypothetical instances of harm that they might suffer in the future. That’s not enough to demonstrate that they have standing,” Wuest said.
Abortion has also become a hot-button issue, especially during election years. During the 2022 midterms, for example, Politico reported that Democrats — newly mobilized after the overturning of Roe v. Wade — prevented the predicted “red wave,” of Republican victories in congressional and state elections. Fernandez Anderson explained that “an election year might not be the time [for the Supreme Court] to restrict abortion even more.”
Ruling that the anti-abortion activists lack legal standing would allow the Supreme Court to avoid ruling on the other aspects of the case. However, it does not close the door for future attempts to restrict abortion treatments.
“A few justices have used the oral argument to test other anti-abortion legal strategies,” Wuest explained. “Justices Samuel Alito and Clarence Thomas both indicated that the Comstock Act of 1873 could be used by a future presidential administration to outlaw the mailing of abortion pills like mifepristone.” The Comstock Act of 1873 is a law that, in part, prevents items “designed, adapted, or intended for producing abortion, or for any indecent or immoral use,” from being mailed, according to Cornell Law School.
Wuest noted that anti-abortion activists could employ the Comstock Act to prevent other abortion treatments as well. “Some law professors even think that the Comstock Act could be interpreted to create a national abortion ban, which means that a conservative Congress and president in 2025 would not even have to expend the political effort in passing a new anti-abortion federal law to achieve their aims.”
The case also has broader implications beyond abortion. According to Wuest, striking down the FDA’s approval of mifepristone, which was the original intent of the lawsuit, would have been the first time the Supreme Court removed an FDA-approved drug from the market. The questions before the Supreme Court have since narrowed, but Wuest says the case still presents a “historic challenge to the FDA.”
“A decision to restrict mifepristone would signal that the courts can supersede a government agency,” Fernandez Anderson said.
Wuest emphasized, “the fundamentally anti-bureaucratic nature of this legal challenge and how it relates to the Supreme Court’s broader willingness to take an ax to the agencies that protect our drinking water, air and food and drug supply … we should pay at least as much attention to that broader agenda as we do to its anti-abortion element.”