The ‘WTF Is Happening’ Guide to the Supreme Court Abortion Pill Case

On Tuesday morning, the Supreme Court will hear a challenge to the abortion drug mifepristone, one of two medications commonly used in medication abortion since being approved in September 2000. The case proves yet again that overturning Roe v. Wade did not “send abortion back to the states,” as some Justices said and activists and GOP lawmakers wanted everyone to believe. Conservative advocates want to ban abortion nationwide and they’ll try anything to achieve that goal. Abortion pills are an easier target than procedures, as they’re newer than procedural abortions. (Still, there’s a second abortion case this term about whether hospitals have to perform abortions when people’s health is threatened, versus only when their life is imminently at risk.)

The case is called Alliance for Hippocratic Medicine v. FDA, and it involves a group of doctors suing the Food and Drug Administration over mifepristone, the first drug in the FDA-approved medication abortion protocol. (Mifepristone halts a pregnancy from progressing, then a second medication, misoprostol, causes contractions to induce a miscarriage.) The suit, which claims the FDA shouldn’t have made mifepristone any easier to get in 2016 and 2021, was originally filed in November 2022 and a final ruling isn’t expected until late June, which is when the court often drops its biggest turds.

Here’s what is going on, written in FAQ format, and starting with the biggest Q of all.

Could the Supreme Court ban the drug?

No, but they could make it much more difficult to get. In 2016, the FDA updated the label for mifepristone to reflect studies showing it was safe and effective through 10 weeks of pregnancy up from the original seven weeks. It also reduced the number of in-person appointments required to get the drug from three down to two. (Patients still had to get the drug in person.) In 2021, the Biden administration said providers could prescribe mifepristone via telemedicine during the covid pandemic, a change it made permanent later that year.

The court will decide whether or not a group of anti-abortion doctors, the Alliance for Hippocratic Medicine, have legal standing to sue the FDA over the 2016 and 2021 changes, and, if they do, whether the Supreme Court should uphold a ruling undoing those changes. That is, slap old restrictions back on the drug.

How big of a deal would those restrictions be?

Medication abortion has been the most common method for a few years now. (“Common” not “popular” because 40% of all clinics only offer medication abortions, and at Planned Parenthood that share is 58%, so it’s possible more people would choose procedures if they were more accessible.) In 2023, nearly two-thirds of abortions were done with pills, up from just over half in 2020.

Providers could still prescribe mifepristone off-label through 10 weeks of pregnancy, but undoing the ability to prescribe it via telemedicine would be a big blow. People would, once again, have to go to clinics to get pills they’ll take at home, and after the fall of Roe there are fewer clinics open and they’re all much busier.

Ma’am, I live in California, this doesn’t affect me.

Oh, here’s where you’re wrong. Whatever the court decides will apply nationwide, even in bright blue California and New York. Look again at those statistics above about clinics that don’t offer procedural abortions—restricting mifepristone would drastically cut access to abortions in the formal healthcare system. It could be harder for people across the country to end their pregnancies.

(PSA: There are also community support networks mailing pills to people all over the country. People can also have an abortion using only misoprostol. The website Plan C has a ton of info.)

Fun. Wait, haven’t you been yelling about a dormant abortion ban?

Yes, yes I have. In their legal briefs, the doctors argue that the FDA was not only wrong on the science to allow telemedicine, but that the move violated a 19th-century federal law that’s never been repealed. The Comstock Act of 1873 made it a crime to mail, possess, or sell “obscene materials,” and specifically named items used for abortions. It’s a hail-mary legal argument, but it’s just one part of the conservative strategy to resuscitate Comstock—which a future Trump administration could use to ban abortion nationwide.

Where on Earth did this lawsuit come from?

Anti-abortion doctors created a group in Amarillo, Texas, shortly after the Supreme Court overturned Roe and hired as their lawyers Alliance Defending Freedom, a right-wing Christian law firm that represented Mississippi in the Dobbs case. (One of ADF’s lawyers on the case is Erin Hawley, wife of Missouri Sen. Josh Hawley.) The group, Alliance for Hippocratic Medicine, sued the FDA seeking to have courts overturn the FDA’s approval of mifepristone from more than 20 years earlier—long after the statute of limitations had passed. AHM may actually be based in Tennessee.

This case sounds like bullshit?

Unfortunately, yes. The group claimed that the FDA’s 2016 and 2021 changes to mifepristone injure them because *takes deep breath* increased access to medication abortion means more people will experience complications and head to ERs where these anti-abortion doctors might have to help them complete their abortions. It was all hypotheticals! But hey, the federal right to abortion was gone, so why not shoot your shot? They filed this sham lawsuit in a federal court district where, at the time, they had a 95% chance of drawing a notorious Trump judge named Matthew Kacsmaryk. (After other plaintiffs kept filing cases in single-judge districts, the federal court system said it was moving to end so-called “judge shopping.”)

That name sounds familiar. Remind me about Judge Kacsmaryk again?

Before Donald Trump nominated him to a lifetime seat on the bench, Kacsmaryk was a lawyer at a Christian firm called the First Liberty Institute. He was raised as a devout Christian and he and his wife were donors to an anti-abortion maternity home where his sister gave birth as a teen; he also served on their board. Kacsmaryk has connections to the Federalist Society, the same group that a bunch of Supreme Court Justices belong to. And not only did Hawley’s wife argue the case in Kacsmaryk’s court, he donated to the Senator’s campaign in 2018 before Trump nominated him to be a judge. (Hawley voted yes to confirm him.)

Kacsmaryk is the guy who ruled in April 2023 that the doctors did have standing to sue and that the FDA should yank the pill from the market. (He said in a footnote that he used the phrase “unborn humans” in his ruling because, he claimed, it’s “unscientific” to use the word “fetus” as a catchall since that only refers to one gestational stage of pregnancy.) He also cited multiple studies that have since been retracted because of flawed analyses and unreported ties to anti-abortion groups.

So, these doctors should have been laughed out of court?

Yes. You can maybe understand why they chose to file in Kacsmaryk’s jurisdiction. The Fifth Circuit Court of Appeals, which oversees Texas, is also very conservative, and they said the doctors waited too long to challenge the drug’s initial 2000 approval but that they had standing to sue over the 2016 and 2021 changes.

One of the formal questions that the justices will consider in the case is whether the plaintiffs meet the requirements for having standing to sue in federal court by “arguing that some unspecified member may be injured at some future time.” That’s not how standing works! You’re supposed to have to show concrete harm, but then again, ADF is the same legal shop that brought us the case last year of the Colorado wedding website designer who hadn’t actually designed any wedding websites yet. (The court ruled in her favor.)

Who supports the lawsuit?

All the anti-abortion groups and nearly 150 Republican members of Congress.

Who wants the court to leave mifepristone alone?

A big, big group including every major medical organization, more than 250 Democratic members of Congress, and a bunch of pharmaceutical companies.

So, what’s going to happen?

I don’t fucking know and that’s the scary part. The justices shouldn’t have agreed to take the case in the first place and just overturned both the lower court rulings. But they did take it. So now we have to wait and see if they will do the right thing and swat this case away on standing grounds, but with a 6-3 conservative supermajority, there’s no telling what they’ll do. (And even if the justices do dismiss the case, there are three Republican Attorneys General who asked to join the lawsuit in Kacsmaryk’s court, saying they have standing to sue the FDA. If the doctors group loses, the AGs could try to keep the fight against mifepristone—and for the Comstock Act—alive.)

We’ll be back with more after the hearing on Tuesday.