US supreme court to hear first major abortion case since Roe decision
Abortion is back at the US supreme court, with arguments on Tuesday in the first major case on the issue since a 6-3 majority ruled in 2022to overturn Roe v Wade and endthe national right to abortion– a decision that unleashed abortion bans throughout the country as well asa political backlash that Democrats hope will serve them in the coming presidential election.
At issue in the case is the future of mifepristone, adrug typically used in US medication abortions. The rightwing groups that brought the case are seeking to roll back measures taken by the Food and Drug Administration (FDA) to expand the drug’s availability in recent years.
A decision in their favor would apply nationwide, including in states that protect abortion access, and would likelymake the drug more difficult to acquire. The loosening of restrictions on mifepristone have helped mitigate the impact of post-Roe abortion bans; if those restrictions are reimposed, abortion rights groups anticipate it will become significantly more difficult to access abortions in the US.
“More than 60% of abortions in the US are medication abortions, so that would impact a substantial number of people, whether you live in a protective state or a restricted state,” said Nicole Huberfeld, a health law professor at Boston University’s School of Public Health.
Since the fall of Roe in June 2022, more than a dozen states have banned abortion. The result has been legal and medical chaos. Dozens of women have come forward to say that they were denied medically necessary abortions. Abortion clinics in states that still allow abortion areoverwhelmed by the flood of patients fleeing states with bans. More than 1m abortions were performed in the US in 2023, a record high.
The availability of medication abortions, which are usually performed using mifepristone as well as another drug called misoprostol, has helped soften the impact of the bans. Telehealth medicationabortions, permitted by the FDA since the pandemic, helped ease some of the burden on abortion clinics; shield laws, passed in a handful of states, even allowed providers to offer telehealth abortions to people living in states with abortion bans.
Butthe accessibility of medication abortion alsomade it the next target of
the anti-abortion movement after Roe was overturned.In 2022 a group called the Alliance for Hippocratic Medicine challenged the FDA’s 2000 approval of mifepristone. The group, which includes anti-abortion doctors and is being defended by the Christian powerhouse legal firm the Alliance Defending Freedom, argued that the FDA overstepped its authority and that mifepristone is unsafe. (More than 100 studies have concluded that mifepristone can be safely used to terminate a pregnancy.)
A federal judge ruled in favor of the Alliance for Hippocratic Medicine, a move that could have yanked mifepristone off the market entirely. But an appeals court narrowed that ruling, deciding that it was too late to challenge mifepristone’s original 2000 approval.
Instead, the appeals court ruled to rewind later measures taken by the FDA that expanded access to mifepristone, including by removing requirements that abortion providers dispense mifepristone in person. A recent analysis found16% of all US abortions are facilitated through telehealth.
The oral arguments on Tuesday are expected to focus on these later measures. Mifepristone’s availability has remained unchanged as litigation has progressed.
Regardless of what the supreme court decides, Americans will still be able to order mifepristone online from suppliers who help people “selfmanage” their own abortions. A study released on Monday found self-managed abortions have soared since Roe fell.
Outrage over the overturning of Roe has turned abortion into a key election issue, since most Americans support at least some degree of abortion access. Voters in multiple states, including conservative strongholds such as Kentucky and Kansas, voted in ballot initiatives in favor of abortion rights; roughly a dozen states are now expected to put abortion-related ballot measures to voters come November. Democrats are hoping that the issue will bolster turnout for their candidates, including Joe Biden.
The supreme court is expected to issue a ruling in the mifepristone case by the summer, just months ahead of the 2024 elections.
The case’s consequences could stretch far beyond abortion. If the justices greenlight attempts by ideologically driven groups to second-guess-the authority of the FDA, the agency’s regulation of all manner of drugs – such as contraception and vaccines – could be challenged in court.
“If the court weakens the FDA’s authority here, states will be emboldened to create other carve-outs for other drugs, maybe for political reasons. And that is something that’s problematic for everyone,” Huberfeld said. “If you think that this is someone else’s problem, you’re mistaken.”