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ABORTION PILL RULING - In its first ruling on reproductive rights since overturning Roe v. Wade, the U.S. Supreme Court on Thursday rejected a lawsuit that questioned the FDA’s approval of the abortion pill mifepristone.
Medication abortion will remain widely available to Californians after the U.S. Supreme Court rejected a bid by anti-abortion groups and doctors to challenge the Food and Drug Administration’s approval of the drug.
In a unanimous vote, the high court today said plaintiffs did not have standing to claim the FDA had inappropriately expanded access to mifepristone, also known as the abortion pill. In doing so, justices temporarily upheld FDA regulations allowing clinicians to prescribe the pill via telehealth appointment and mail order delivery of the drug and sent the case back to the lower courts.
“Specifically, FDA’s regulations apply to doctors prescribing mifepristone and to pregnant women taking mifepristone. But the plaintiff doctors and medical associations do not prescribe or use mifepristone. And FDA has not required the plaintiffs to do anything or to refrain from doing anything,” Justice Brett Kavanaugh wrote.
The Alliance for Hippocratic Medicine, a group representing doctors and others opposed to abortion, had argued that relaxed mifepristone regulations could cause doctors with moral or religious objections to treat patients arriving at the emergency room with complications related to taking the pill. The ruling stated that federal law already provides comprehensive protections for clinicians who object to performing abortions.
Kavanaugh wrote, “plaintiffs have not shown — and cannot show — that FDA’s actions will cause them to suffer any conscience injury.”
The decision is the first abortion challenge to make it to the high court after justices overturned Roe v. Wade and eliminated federal abortion protections in 2022. Justices are still considering a nearly four-decade-old federal law ensuring patients who arrive at an emergency room will get treated and are expected to rule later this month.
Although advocates for abortion and reproductive rights were quick to celebrate the decision, many cautioned that the case could work its way through the court system once again.
“While a sigh of relief, SCOTUS’ decision today was decided on standing — not merits,” Gov. Gavin Newsom said on X, the social media platform formerly known as Twitter. “Make no mistake: radical anti-abortion activists will stop at nothing to deny women their rights to access reproductive care.”
Anti-abortion group plans to continue lawsuit
Similarly, Attorney General Rob Bonta said in a statement that the “fight for reproductive rights across the country is far from over” and reaffirmed the Department of Justice’s commitment to protecting access in California.
“No matter how many lawsuits they file or challenges they bring, they cannot change the facts: mifepristone is safe and effective,” Bonta said in a statement.
Since the Supreme Court decision overturning the right to an abortion, California has strengthened abortion rights and welcomed patients from states that have prohibited abortion. Most recently, Newsom signed a law allowing abortion providers from Arizonaan expedited licensing pathway in California.
Alliance Defending Freedom, the group representing the plaintiffs in the abortion pill case, said in a statement that it would continue the legal battle. A lower court judge has already ruled that three states — Idaho, Missouri and Kansas — can join the case as plaintiffs. Legal experts say states often have a stronger standing argument because they have to provide access to health care services.
“While we’re disappointed with the court’s decision, we will continue to advocate for women and work to restore commonsense safeguards for abortion drugs — like an initial office visit to screen for ectopic pregnancies. And we are grateful that three states stand ready to hold the FDA accountable for jeopardizing the health and safety of women and girls across this country,” Erin Hawley, senior counsel for the group said in a statement.
Abortion pill access
Medication abortion is the most commonly used abortion method, accounting for nearly two-thirds of all U.S. abortions, according to the Guttmacher Institute, a national reproductive health policy center advocating for abortion rights.
Mifepristone, the pill at the heart of the Supreme Court decision, is part of a two-drug regimen for medication abortion. It halts pregnancy by blocking the hormone progesterone before the second drug, misoprostol, empties the uterus by causing it to contract.
The FDA approved mifepristone in 2000 and made it easier to access in 2021 when the COVID-19 pandemic made in-person dispensing requirements impossible. It is now used in nearly all medication abortions.
A container with boxes of Mifepristone, a drug used for medication abortions, at the Alamo Women’s Clinic in Carbondale, Illinois on April 20, 2023. Photo by Evelyn Hockstein, Reuters
Cathren Cohen, a staff attorney with the UCLA Center on Reproductive Health, Law and Policy, said a ruling against the FDA could have had a destabilizing effect on all pharmaceuticals.
“The court, they’re not scientists so for them to be second guessing the people with actual authority, which is the FDA, that’s concerning,” Cohen said.
The center submitted an amicus brief to the Supreme Court on behalf of 300 reproductive health researchers detailing mifepristone’s safety record. Dozens of studies have demonstrated its safety and efficacy over the past 20 years.
Recently researchers from UCSF’s Bixby Center for Global Reproductive Health conducted the largest study of telehealth abortions and found that medication abortions obtained via telehealth appointments are just as safe as in-person medical care, with 98% of patients completing the abortion without the need of additional medical care.
Last year, Newsom announced the state would stockpile the second drug in the medication abortion regimen, misoprostol, in case the Supreme Court decision resulted in a shortage. That stockpile has been depleted and it was not immediately clear whether the state would replenish it.
Misoprostol can be safely used alone for abortions but is more likely to have side effects when not paired with mifepristone, studies show. Both drugs are also commonly used to manage miscarriages.
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(Kristen Hwang is a health reporter for CalMatters covering health care access, abortion and reproductive health, workforce issues, drug costs and emerging public health matters. This story was first published in CalMatters.org.)
