Supreme Court Skeptical of Push to Curb Access to Abortion Pill

In the 2022 case of Dobbs v. Jackson Women's Health Organization, the U.S. Supreme Court overturned Roe v. Wade and held that there is no constitutional right to an abortion, returning the legality of abortion to the states. The court must now decide if access to mifepristone, the drug used in medication abortions, should be restricted.

During oral arguments last week, most of the justices seemed reluctant to roll back access to the drug. Instead, they focused on whether the plaintiffs had a legal right, or standing, to sue and questioned whether the doctors in the case, Food and Drug Administration v. Alliance for Hippocratic Medicine, had suffered any injury resulting from the agency's actions.

The Food and Drug Administration approved mifepristone for use in 2000 and expanded access to it in 2016 and 2021, permitting the drug to be prescribed via telehealth without an in-person physician visit. A group of doctors and medical organizations who oppose abortion on religious or moral grounds challenged the FDA's 2000 approval of mifepristone and the agency's subsequent access modifications. The 5th U.S. Circuit Court of Appeals vacated the challenge to the 2000 approval as untimely but stayed the FDA modifications. The FDA appealed.

There are three issues in the current case: whether the anti-abortion group and doctors have legal standing to sue; whether the appeals court acted correctly when it stayed the FDA's 2016 and 2021 changes to mifepristone use; and whether the 5th Circuit's decision to roll back the FDA's modifications was flawed.

The doctors and anti-abortion group argue that they might be forced to treat complications that arise from mifepristone use in opposition to their moral, religious and ethical beliefs. They argue that they have legal standing to sue the FDA because of this possibility of harm. The FDA argues that the doctors do not have standing because they are not required to prescribe mifepristone, and the agency does not mandate that the doctors do anything resulting from its 2016 and 2021 changes to mifepristone policy. Furthermore, the doctors do not have to treat patients who used mifepristone. The FDA argues that the appropriate legal standard to determine standing is whether there is an imminent injury to the doctors, not a possible injury.

States Weigh In

Six hundred state legislators from 49 states filed an amicus brief in the case. The lawmakers argue that since the court's decision in Dobbs, they have legislated on the abortion issue. Thirteen states and Washington, D.C., protect abortion in statute; at least 14 states ban the procedure, with or without limited exceptions, according to the Guttmacher Institute.

The legislators argue that "they have taken seriously the court's mandate, absent federal congressional action protecting the right to abortion, to address abortion access on a state-by-state basis based on the needs, values and desires of the constituents they were elected to represent." They further argue that the 5th Circuit's stay of the FDA's mifepristone policies undermines state legislative authority under Dobbs.

Lastly, the legislators argue that the 5th Circuit's decision "disrupts the delicate balance between the FDA's authority to approve a drug using rigorous scientific standards, and states' long-standing authority to regulate health care access and delivery." Twenty-three states and the district also filed an amicus brief alleging that "the continued availability of mifepristone in accordance with sound scientific guidelines is critical to safeguarding amici states' important interest in protecting the health, safety and rights of their residents to access essential reproductive health care."

The court will issue a decision in the case by the end of June.

Susan Frederick is NCSL's senior federal affairs counsel.

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