The Supreme Court on Thursday rejected an attempt by abortion opponents to restrict access to mifepristone, one of two drugs used in medication abortions.
The lawsuit was filed by the Hippocratic Medical Alliance, a group of anti-abortion doctors in Texas that formed in response to the Supreme Court’s 2022 decision that will end Roe v. Wade.
The court ruled that the anti-abortion doctors and groups who filed the lawsuit had no legal basis to do so because they had no direct connection to the regulation of mifepristone.
Here’s what you need to know:
The verdict was unanimous and procedurally
The 9-0 decision was written by Justice Brett Kavanaugh, who was appointed by former President Trump.
The ruling was procedural and did not address the underlying regulatory or safety issues raised by the plaintiffs. Instead, Kavanaugh wrote that the coalition had failed to prove that any of its physicians were directly affected by the Food and Drug Administration’s (FDA) actions.
“We recognize that many members of the public, including the plaintiff physicians, have genuine concerns and objections to the use of mifepristone and to people obtaining abortions,” Kavanaugh wrote, “but members of the public and their physicians have no right to sue simply because others are permitted to conduct certain activities — at least not unless the plaintiffs can show how they are harmed by the government’s lack of regulation of others.”
Justice Clarence Thomas wrote a concurring opinion in which he further commented on the standing issue and reiterated his belief that pro-abortion doctors lack standing to sue on behalf of their patients.
Access remains the same, but it’s still a patchwork
Thursday’s ruling upheld the status quo but did not mean mifepristone would become widely available.
The drug is available for people up to 10 weeks pregnant and is also available by mail. Nurses and other non-physicians are still allowed to prescribe it.
But it all depends on where you live.
Walgreens and CVS announced in March that they would fill prescriptions for mifepristone “in states where it is legal.”
“Currently, Planned Parenthood health centers across the country will continue to offer medication abortions using mifepristone to patients in states where abortion is legal,” Jacqueline Ayers, senior vice president of the Planned Parenthood Action Fund, told reporters on Thursday.
Abortion is nearly completely banned in more than a dozen states, and mifepristone is illegal.
Some states have effectively banned telemedicine abortions by requiring a doctor to be in the same room as the patient when the medication is administered, and Arizona has banned abortions by mail.
While some blue states have health care providers who prescribe abortion pills through telehealth protection laws, they do not operate in all states, and red states are exploring ways to block the practice.
For example, the state of Louisiana recently passed a law designating mifepristone and misoprostol as controlled substances and making possession without a prescription a crime.
Democrats and abortion rights groups aren’t celebrating
While the ruling is the most significant for abortion rights since the Supreme Court overturned Roe v. Wade two years ago, it is far from the end of the fight.
Democrats and abortion rights activists said they know there will be more attacks on abortion in the future.
“Today’s ruling does not change the fact that the fight for reproductive freedom continues. It does not change the fact that women lost a fundamental freedom when the Supreme Court overturned Roe v. Wade two years ago. It does not change the fact that in many states, women’s right to access the medical treatment they need is now at risk, if not impossible,” President Biden said in a statement.
Julia Kaye, senior attorney at the ACLU’s Reproductive Freedom Project, told reporters the ruling was “reassuring.”
“But don’t be fooled by the fact that the Supreme Court got it right,” she said. “While the Supreme Court denied these people’s case, anti-abortion politicians are standing by to continue their campaign to take away access to medication abortion care.”
Additionally, the court is expected to rule in the coming days or weeks on a separate abortion case that pits Idaho against the Biden administration, asking whether doctors can perform abortions on patients experiencing serious, but not necessarily life-threatening, medical emergencies.
This case may not be over yet.
Thursday’s ruling may not be the end of the legal challenges to mifepristone.
The decision does not preclude new lawsuits by plaintiffs with stronger claims of standing.
But the bigger threat could come from three Republican-leaning states.
Idaho, Kansas and Missouri also sought to join the suit, and although the Supreme Court rejected their request, a conservative judge in Amarillo, Texas, who initially ruled against the FDA, allowed the states to intervene in their own jurisdictions.
“We expect the litigation to continue as the state makes different standing claims than our doctors do,” said Erin Hawley, an attorney for the conservative group Alliance Defending Freedom, which represented the doctors in the lawsuit.
It remains to be seen whether those states will have the right to sue the FDA or whether the litigation will continue. Some legal experts say that because the Supreme Court ruled the parties did not have a right, Republican-leaning state attorneys general have no right to intervene.
But even if the Amarillo lawsuit is ultimately dismissed, abortion advocates said they expect similar lawsuits to come forward in Idaho, Missouri or Kansas.
