The US Supreme Court's ruling on Thursday (June 13) keeping the abortion drug mifepristone on the market with no new restrictions ends one chapter of the legal fight over the drug, but efforts by abortion opponents to restrict its use may not be over.
In rejecting a lawsuit by anti-abortion medical groups and doctors, the Supreme Court did not rule on their claim that the US Food and Drug Administration (FDA) acted improperly when it eased restrictions on mifepristone, including allowing it to be prescribed by telemedicine and dispensed by mail. Instead, the court found that they had not shown that they had suffered the kind of harm that would allow them to bring a lawsuit.
The plaintiffs had argued that anti-abortion doctors were harmed by the pill's availability because they might be forced to violate their conscience by treating patients who developed complications after taking it. But the Supreme Court decided they had not offered any evidence that any doctor had actually faced that situation or was likely to in the future.
Normally, that would be the end of the case. Last November, however, US District Judge Matthew Kacsmaryk in Amarillo, Texas, where the lawsuit was originally filed, allowed three Republican-led states that ban abortion to join the case as plaintiffs.
Those states — Idaho, Missouri and Kansas — had asked to join the Supreme Court appeal, but the justices refused, leaving their claims pending in Kacsmaryk's lower court.
Now, they can try to go forward on their own. Abortion rights groups, including Planned Parenthood and the Center for Reproductive Rights, as well as abortion opponents, including Susan B. Anthony Pro-Life America, said the fight is not over and cited the pending claims by the states.
Mifepristone is the first part of a two-drug regimen used for medication abortion, which is approved by the FDA to terminate pregnancy in the first 10 weeks. Medication abortion accounted for more than 60 per cent of US abortions last year.
The drug has drawn increasing attention as Republican-led states have banned or restricted abortion in the wake of the US Supreme Court's 2022 ruling reversing Roe v. Wade, its longstanding precedent that had guaranteed abortion rights nationwide.
The dwindling availability of abortion services in much of the United States has led some women to obtain abortion pills in defiance of laws in their states. Several Democratic-led states have passed expansive shield laws intended to allow doctors to prescribe and mail the drug across state lines.
Idaho, Missouri and Kansas claim that their residents had obtained mifepristone elsewhere or received it illegally in the mail, leading public hospitals to incur costs dealing with complications of medication abortions.
That theory of standing is also untested, but Kacsmaryk has already shown that he is open to it by allowing the states to join the case in the first place. President Joe Biden's administration has argued that the claim to legal standing made by the states, like the claim made by the original plaintiffs, is based on unsupported hypotheticals.
David Cohen, a professor at Drexel University's Kline School of Law in Philadelphia, said the argument advanced by the states for standing raised "similar concerns" to those cited by the Supreme Court in Thursday's ruling.
"They are also claiming a theory that does not have a close link in terms of causation" between the FDA's actions and any potential injury, Cohen said.
James Blumstein, a law professor at Vanderbilt University in Nashville, Tennessee, said he agreed that the claim by the states that they face imminent harm as a result of mifepristone's availability is "iffy."
It is not clear, Blumstein added, that any potential harms to the states were "imminent" enough to create standing, since these also seemed to rely on a series of hypothetical events.
Kacsmaryk, a former conservative Christian activist, has proven broadly sympathetic to abortion foes, likely the reason they chose to sue in his court. In his original ruling in the case, the judge went further than restoring old restrictions on mifepristone, instead suspending its approval, which the FDA had issued in 2000, altogether.
On appeal, the New Orleans-based 5th US Circuit Court of Appeals found that the lawsuit was too late to challenge that decades-old approval, and the Supreme Court declined to review that finding, meaning that the original approval is likely safe. But if Kacsmaryk lets the states go forward, he would be free to impose the later restrictions once again.
That would trigger another round of appeals to the 5th Circuit and possibly the Supreme Court, dragging out the uncertainty and confusion around the pill for months or years.
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