Supreme Court Will Hear Abortion Pill Case Right in the Middle of the 2024 Campaign

Mifepristone will remain available throughout the litigation process.

Supreme Court Will Hear Abortion Pill Case Right in the Middle of the 2024 Campaign
Photo:JIM WATSON/AFP (Getty Images)

On Wednesday afternoon, the notoriously conservative Fifth Circuit Court of Appeals released its opinion on whether they’re going to ban mifepristone, the main abortion drug. Its ruling would restrict the medication, but a Supreme Court ruling from April, which blocked any changes to access during litigation, leaves the drug available for now. The Fifth Circuit’s ruling is expected to be appealed, which means the Supreme Court will likely hear the case (which has been brought by anti-abortion doctors) next term—in the middle of the 2024 campaign.

The case—which was filed strategically in an anti-abortion judge’s district in Texas—wants to ban mifepristone by revoking the Food and Drug Administration’s approval of the drug. The Texas district ruling was appealed to the Fifth Circuit. If the Supreme Court chooses to take up the case following the expected appeal, it will all but guarantee that abortion stays front of mind for voters, even in states that aren’t actively trying to vote on abortion rights.

Again, mifepristone will remain available throughout the litigation process as the Supreme Court ruled in April. Despite that overruling order, the three-judge panel at the appellate court ruled on Wednesday:

  • The anti-abortion doctors’ challenge of the approval of mifepristone by the FDA in 2000 is “likely barred” by a statute of limitations.
  • The anti-abortion doctors did not demonstrate that they were actually injured by the 2019 approval of generic mifepristone.
  • The FDA’s changes to mifepristone, which allows the drug to be mailed, allows medical professionals beyond an doctor to prescribe the drug, allows the pills to be prescribed by telemedicine, and lets patients take it up to 10 weeks of pregnancy, are likely unlawful.

But even then, the court goes to great pains to remind the reader that its ruling against those FDA changes isn’t going into effect at this time because of the aforementioned Supreme Court ruling from April. You can still get abortion pills in America.

While it’s possible for the Supreme Court to hear emergency arguments earlier, it’s more likely the case gets docketed during its upcoming term that begins in October. This means while former President Donald Trump is dodging criminal trials and bodying Gov. Ron DeSantis (R) at presidential debates, the nation’s highest court (and therefore national media) will be focused on the anti-abortion lawsuit seeking to upend America’s most popular abortion method.

“We will continue to use our company’s legal and regulatory tools to ensure access to mifepristone, which is essential to the health of many in the United States,” GenBioPro CEO Evan Masingill, who is the manufacturer of generic mifepristone, said in a statement. He added the company “remain[s] concerned about extremists and special interests using the courts in an attempt to undermine science and access to evidence-based medication, as well as attempts to undermine the [FDA’s] regulatory authority.”

The anti-abortion hostility of the panel of judges jumps off the ruling’s page. In the third paragraph, the opinion parrots a popular anti-abortion talking point: “Many women face severe complications as a result of taking mifepristone.” This is false. Mifepristone is safer than low-risk drugs like penicillin and Viagra. Mifepristone has a death rate of 0.0005 percent (5 deaths per every 1 million people who used it since 2000), per the FDA. “The risk of death is almost non-existent,” according to an amicus brief filed by the American College of Obstetricians and Gynecologists and 11 leading medical organizations.

Abortion access is far from safe. We’ve been living in the fall-out of a post-Roe world for more than a year now, but at least people have had access to medication abortion in some way. If the Supreme Court chooses to ban the drug? It would be utter chaos, completely of the Republican Party’s making.

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