The U.S. Supreme Court's ruling on Thursday maintaining the availability of the abortion drug mifepristone without new restrictions concludes one phase of the legal battle, though efforts by opponents to restrict its use may persist.
In rejecting a lawsuit by anti-abortion medical groups and physicians, the Supreme Court did not address their claim that the U.S. Food and Drug Administration (FDA) acted improperly when it eased restrictions on mifepristone, including allowing it to be prescribed via telemedicine and dispensed by mail.
The court determined that the plaintiffs had not demonstrated the harm necessary to bring a lawsuit. The plaintiffs argued that anti-abortion physicians were harmed by the drug's availability as they might be forced to treat patients with complications after its use, violating their conscience. However, the Supreme Court found no evidence that any physician had faced or was likely to face this situation.
Typically, this ruling would end the case. However, U.S. District Judge Matthew Kacsmaryk in Amarillo, Texas, where the lawsuit was initially filed, allowed three Republican-led states that ban abortion to join the case as plaintiffs last November.
These states, Idaho, Missouri, and Kansas, sought to join the Supreme Court appeal, but the Court refused, leaving their claims pending in Kacsmaryk's court. Now, they may proceed independently.
Mifepristone is the first component of a two-drug regimen used for medication abortion, approved by the FDA to terminate pregnancy within the first 10 weeks. Medication abortions accounted for over 60% of U.S. abortions last year.
The drug has drawn increased attention as Republican-led states have banned or restricted abortion following the Supreme Court's 2022 decision overturning Roe v. Wade, which had guaranteed abortion rights nationwide.
With dwindling abortion access in many states, some women have obtained abortion pills in defiance of state laws. Several Democratic-led states have enacted expansive shield laws to enable physicians to prescribe and mail the drug across state lines.
Idaho, Missouri, and Kansas claim that their residents obtained mifepristone elsewhere or illegally by mail, causing public hospitals to incur costs from complications of medication abortions.
This theory of standing is untested, but Kacsmaryk has shown openness to it by allowing the states to join the case. President Joe Biden's administration argues that the states' claim to legal standing, like the original plaintiffs' claim, is based on unsupported hypotheticals.
Kacsmaryk, a former conservative Christian activist, has demonstrated sympathy towards abortion opponents. In his original ruling, he not only restored old restrictions on mifepristone but also suspended its FDA approval from 2000.
On appeal, the New Orleans-based 5th U.S. Circuit Court of Appeals ruled that the lawsuit was too late to challenge the decades-old approval, and the Supreme Court declined to review that finding, indicating that the original approval is likely secure. However, if Kacsmaryk allows the states to proceed, he could reimpose the later restrictions.
This would likely trigger another round of appeals to the 5th Circuit and potentially the Supreme Court, prolonging the uncertainty and confusion surrounding mifepristone for months or years.