Supreme Court upholds full access to abortion pill mifepristone, in unanimous ruling
In a major victory today for the Biden administration, the high court has upheld broad access to mifepristone, the widely used abortion pill, overturning an appeals court ruling that barred mail-order prescriptions.
The U.S. Supreme Court on Thursday unanimously rejected a lawsuit challenging the federal Food and Drug Administration’s loosening of restrictions on the common abortion drug mifepristone, holding that a group of anti-abortion doctors lacks legal standing to bring the challenge.
Justice Brett Kavanaugh wrote the opinion for the court. Justice Clarence Thomas joined Kavanaugh and issued a concurrence.
The decision is a major victory for the Biden administration, which appealed a recent U.S. Court of Appeals for the Fifth Circuit decision that the FDA’s actions easing access to mifepristone were unlawful.
Kavanaugh rejected the doctors’ argument that the FDA’s actions would “injure” them by resulting in more medical emergencies from abortion drug complications that they would then need to treat. Kavanaugh said that the “causal link between [the] FDA’s regulatory actions and those alleged injuries is too speculative or otherwise too attenuated to establish standing” under Article III of the Constitution.
In the 2016 and 2021 actions in question, the FDA increased the gestational limit for administering the drug from seven to 10 weeks. The agency also eliminated a requirement that the mifepristone be dispensed in person during the pandemic, allowing the drug to be sent through the mail for the first time.
The case had the potential to affect access to mifepristone for millions of women nationwide, and was the first abortion case to come before the court since its 2022 decision in Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade.
The court said that the plaintiff, a newly formed anti-abortion group called the Alliance for Hippocratic Medicine, had failed to show that the FDA actions would actually give rise to an injury that would entitle the group to sue.
“The doctors have not offered evidence tending to suggest that [the] FDA’s deregulatory actions have both caused an increase in the number of pregnant women seeking treatment from the plaintiff doctors and caused a resulting diversion of the doctors’ time and resources from other patients,” Kavanaugh wrote.
In its lawsuit, the alliance claimed the FDA’s approval of the drug and subsequent actions expanding access to it were illegal. The group was incorporated in 2022 in Amarillo, Texas, where the lawsuit was heard by a U.S. district judge whose anti-abortion views were well-known.
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The FDA maintains that the drug’s approval came after a comprehensive scientific review found it to be safe and pointed to more than two decades of its safe and effective use, but U.S. District Judge Matthew Kacsmaryk of the Northern District of Texas issued a sweeping injunction invalidating the agency’s original approval and subsequent access expansion.
The conservative U.S. Court of Appeals for the Fifth Circuit blocked the total invalidation of the drug but upheld the injunction as to actions taken by the FDA in 2016 and 2021 to expand access.
Before its ruling, the Supreme Court had reinstated the FDA’s relaxing of the restrictions until it could resolve the appeals by the Biden administration and drugmaker Danco Laboratories.
On Thursday, the court ensured that the increased access for mifepristone would remain.
In his concurrence, Clarence Thomas aired some of his misgivings with “associational standing,” a legal concept that allows a group to sue on behalf of its members’ discrete injuries.