Supreme Court Swats Away Abortion Pill Case, But It’s Not Over Yet

The court only said the plaintiffs—a group of conservative doctors—didn’t have standing to sue. It didn’t weigh in on any underlying arguments about the FDA’s actions on mifepristone.

By Susan Rinkunas | June 13, 2024 | 11:55am

Photo: Getty Images Abortion Politics

Supreme Court Swats Away Abortion Pill Case, But It’s Not Over Yet

The Supreme Court on Thursday did what legal analysts had predicted, and ruled that a group of anti-abortion doctors don’t have legal standing to challenge the Food and Drug Administration’s approval of mifepristone, the first drug used in a medication abortion. The vote in Alliance for Hippocratic Medicine v. FDA was unanimous, but don’t get excited: The justices didn’t rule on the merits of the underlying case, they just said these particular plaintiffs can’t sue. And there are other plaintiffs suing over mifepristone, and conservatives want the federal government to enforce a 19th-century anti-vice law to restrict the use of the drug. So today’s decision does not mean abortion rights are safe. Plus, medication abortion still can’t be prescribed in states with abortion bans.

“The plaintiffs want FDA to make mifepristone more difficult for other doctors to prescribe and for pregnant women to obtain,” Justice Brett Kavanaugh wrote in the opinion. “Under Article III of the Constitution, a plaintiff ’s desire to make a drug less available for others does not establish standing to sue.”

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The case is one of two involving abortion during this term: The other concerns whether hospitals have to provide abortions in emergency situations. We’re still waiting on that ruling.

Medication abortion is an existential threat to the anti-abortion movement because people can get the pills in the mail without having to face protestors or travel out of state, and because telemedicine allows clinics to see more patients. It’s typically a two-drug regimen used for abortions early in pregnancy: Mifepristone stops the pregnancy from progressing, and then misoprostol induces contractions. People in states where abortion is legal can often get the pills via telemedicine, and activist groups also ship the pills to people in states with bans.

In November 2022, five months after Dobbs v. Jackson Women’s Health Organization, a newly formed group of anti-abortion doctors called the Alliance for Hippocratic Medicine filed a federal lawsuit against the FDA in Amarillo, Texas. That location was not by accident: They were almost guaranteed to get Judge Matthew Kacsmaryk, a Trump appointee and vocal abortion opponent. Kacsmaryk is the judge who ruled in April 2023 that the FDA should yank the pill from the market. (An appeals court later narrowed that ruling to say the FDA should impose outdated restrictions, making mifepristone much harder to get; the Biden administration appealed to the Supreme Court, which brings us to today.) The doctors are represented by Alliance Defending Freedom, the far-right Christian legal advocacy group that wrote the Mississippi law the Supreme Court used to overturn Roe v. Wade.

During oral arguments in Alliance for Hippocratic Medicine in March, at least five justices sounded skeptical that the doctors had standing to sue, but the hearing was chilling nonetheless. The doctors’ lawyer Erin Hawley—wife of Sen. Josh—admitted they don’t prescribe mifepristone but claimed they were harmed by theoretical patients coming to emergency rooms with incomplete abortions because the doctors might have to finish the abortion. (This is a non-issue; conscience laws protect doctors who don’t want to perform abortions.) But Hawley went even further by saying that her clients wouldn’t even want to remove placental tissue of patients who had taken mifepristone—basically, if you had an abortion, they don’t want to touch you at all.

Justices Samuel Alito and Clarence Thomas also asked questions suggesting they believe the long-dormant Comstock Act of 1873 could be enforced to ban mailing abortion drugs like mifepristone. Some activists argue Comstock may extend to supplies used for in-clinic abortions, so it could be a threat to procedural care, too. (After the arguments, some Democratic lawmakers came out in favor of repealing the Victorian-era law.) The fact that neither justice wrote about Comstock in today’s opinion absolutely does not mean that threat is gone.

But as we warned in March, the court saying these physicians can’t sue doesn’t mean legal challenges to mifepristone are over—far from it. Three Republican attorneys general from Kansas, Missouri, and Idaho asked to join the lawsuit a year after it was filed in Kacsmaryk’s court, saying they have standing to sue the FDA. Kacsmaryk granted their request to join at the district court level, but SCOTUS didn’t let them participate in the case. These states could try their luck in Amarillo, or they may end up transferring their case to a district court in one of their states. Either way, the lawsuit isn’t dead yet— and a unanimous ruling doesn’t change that.

As Alexa Kolbi-Molinas, deputy director of the ACLU Reproductive Freedom Project, said in a press call on June 5, “When it comes to medication abortion, we know that our opponents in this case are not done.” ACLU senior staff attorney Julia Kaye went even further. “When anti-abortion extremists said that overturning Roe v. Wade was about sending this issue back to states, they were lying. They are coming for medication abortion everywhere in this country,” Kay said. “They are coming for emergency abortions everywhere in this country. They are coming for IVF and contraception.”

The fight isn’t over in the courts, and it’s also a live issue in the November election. A future Trump administration could drastically restrict or even ban mifepristone; an anti-abortion FDA commissioner could slap old restrictions on the drug; the Department of Justice could enforce Comstock.

So don’t believe any headline that blares how the court protected abortion access today, because it’s still very much at risk.