Abortion Access Will, Once Again, Be Decided by the Supreme Court

Experts think SCOTUS will rule against a challenge to mifepristone—which could trick voters into believing they “protected abortion” in a crucial election year.

By Susan Rinkunas | December 13, 2023 | 10:00pm

Abortion Politics

Abortion Access Will, Once Again, Be Decided by the Supreme Court

On Wednesday, the Supreme Court announced that it will hear a case about the abortion pill, mifepristone, this term, which means a ruling could come in June 2024—at the height of the presidential campaign. It’s the first major reproductive rights case the Court has taken up since overturning Roe v. Wade in 2022 but (for once), it’s not automatically bad news. Here’s why.

Last year, a group of anti-abortion doctors sued the Food and Drug Administration, saying the organization had improperly approved mifepristone back in 2000. In April, Matthew Kacsmaryk, a Trump-appointed federal judge in Texas, ruled to block the FDA’s approval and yank mifepristone from the market.

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The FDA appealed and then, in August, the Fifth Circuit ruled that, while the doctors were too late to challenge the drug’s original approval from 2000, they could challenge the FDA’s decision to permit prescriptions via telemedicine, made in 2021, as well as the decision to allow mifepristone to be prescribed through 10 weeks of pregnancy, instead of seven, made in 2016. The FDA appealed that ruling to the Supreme Court.

Basically, if the Supreme Court hadn’t agreed to hear this case, the August ruling would have taken effect, ending telemedicine and limiting prescriptions to the first seven weeks of pregnancy. It would have restricted access in states where abortion is still legal, and also harmed people who use mifepristone to manage their miscarriages. Two pharmaceutical companies told the court that the Fifth Circuit’s decision would have amounted to a temporary nationwide ban on mifepristone as it would have forced them to re-label the drug and recertify all prescribers. Now, nothing changes on medication abortion—the most common abortion method in the U.S.—until the high court issues a decision.

Nancy Northup, president and CEO of the Center for Reproductive Rights said in a statement that the court “did the right thing by agreeing to review the erroneous ruling of the lower court that would drastically curtail access to medication abortion,” adding, “now the question is whether the Court will do the right thing and reject the radical arguments of the Plaintiffs in what should be a clear cut case.”

The Supreme Court said it would hear appeals from the FDA and the drug’s brand-name manufacturer, Danco, on whether the right-wing plaintiffs even have legal standing to sue. The court said it will consolidate these appeals into a one-hour hearing, arguments for which have not yet been scheduled. The justices declined to hear an appeal from the plaintiffs, the Alliance for Hippocratic Medicine, who asked them to rule that the original FDA approval was unlawful. (The AHM is represented by lawyers from Alliance Defending Freedom, the group that was successful in getting the court to overturn Roe in the Dobbs case.)

It’s good that the court rejected that argument about the 2000 approval, but that doesn’t mean it’s fully dead. Three Republican Attorneys General recently asked to intervene in the case, and they did at the lower court level in front of Kacsmaryk, the same person who ruled in April that the drug’s approval should be fully revoked. (Even the ultraconservative Fifth Circuit rejected that argument.) The AGs—from Kansas, Missouri, and Idaho—waited a year to claim that they have standing to sue, which one law professor described as a “pretty transparent and transparently cynical attempt” to put the case on stronger legal footing. Kacsmaryk has yet to weigh in.

Many experts believe the court will rule for the FDA by saying the doctors don’t have standing or an injury that allows them to sue the agency. However, there is a threat in terms of media narrative. This case gives the Court a chance to look reasonable by ruling in favor of the FDA in a decision that would come out in the lead-up to a crucial election. Such a ruling could get the Court headlines that claim they “protected abortion” and “showed moderation,” when all they really did was smack down a meritless lawsuit on standing grounds—and didn’t rule on the underlying arguments of the case about whether the FDA properly approved the drug and later updates to the label. That kind of coverage could serve as insulation from calls for court reform and get weaponized by politicians who want to act like there’s nothing to see here, and abortion won’t be banned if you vote for a Republican, or stay home.

Just think back to Donald Trump saying in a September 2020 debate that Joe Biden was wrong to note that then-nominee Amy Coney Barrett could gut Roe. “It’s not on the ballot; there is nothing happening there,” he proclaimed. “You don’t know her view on Roe v. Wade.” Abortion access is absolutely on the ballot. The next GOP president could ban abortion pills without this lawsuit, and without Congress, by simply enforcing the Comstock Act, a law from 1873 that’s never been repealed. (And if Trump gets elected, he’d absolutely have on his Supreme Court shortlist a judge like James Ho, the Fifth Circuit troll who said the anti-abortion doctors have standing to sue because they like looking at pregnant patients and abortion causes them an “aesthetic injury.”)

In sum, the Supreme Court taking this case isn’t bad news, but of course, that means we have to trust that at least five of the justices will reject the insane arguments that the plaintiffs made, and that’s asking a lot.