WASHINGTON — In a blow to abortion opponents, the Supreme Court on Thursday rejected a challenge to the abortion drug mifepristone, meaning the commonly used drug will remain widely available.
The court unanimously ruled that anti-abortion doctors who questioned the Food and Drug Administration’s decision to make the pill more available had no legal basis to sue.
President Joe Biden said in a statement that the ruling means the pill will remain readily available, but that “the fight for reproductive freedom continues” following the Supreme Court’s decision two years ago that overturned the landmark Roe v. Wade case that established the right to abortion.
“The fact remains that in many states, women’s right to access the medical treatment they need is at risk, if not impossible,” he added.
Writing for the court, Justice Brett Kavanaugh wrote that the plaintiffs “have bona fide legal, moral, philosophical, and policy objections to elective abortion and to the FDA’s deregulation of mifepristone,” but that this does not mean they have standing to bring a federal lawsuit.
Because the plaintiffs have failed to prove they suffered harm, “federal court is an inappropriate forum to address the plaintiffs’ concerns about FDA’s actions,” he added.
“Plaintiffs may raise concerns or challenges to the President and the FDA in the regulatory process, or to Congress and the President in the legislative process,” Kavanaugh wrote, “and may also express their views about abortion and mifepristone among fellow citizens, including in the political and electoral processes.”
The lawsuit was filed by doctors and other medical professionals represented by the conservative Christian legal group Alliance Defending Freedom.
“We are disappointed that the Supreme Court did not hear the merits of the case regarding the FDA’s unlawful repeal of commonsense safety standards for abortion drugs,” said Erin Hawley, one of the group’s lawyers. She told reporters she hopes the litigation will continue because three states — Idaho, Missouri and Kansas — have filed their own lawsuits, each making different arguments about standing to sue.
By dismissing the case on these grounds, the court avoided deciding the legal merits of whether the FDA’s actions to lift various restrictions, including making drugs available by mail, were lawful — meaning the same issue could come before the court again in a different case.
Another regulatory decision means women can get the pill up to the 10th week of pregnancy instead of the seventh.
Similarly, the decision to allow health care providers other than physicians to prescribe the pill will remain in effect.
The court’s decision two years ago to roll back abortion rights has sparked a new wave of abortion restrictions in conservative states.
Although the Supreme Court has since signaled that it will step aside from the political debate over abortion, it continues to play a vital role as litigation over abortion rights continues to rage.
Abortion rights advocates welcomed the ruling, with Nancy Northup, executive director of the Center for Reproductive Rights, saying she was relieved by the ruling but frustrated that the case had been stuck in the courts for so long.
“Thankfully, the Supreme Court rejected this unjust attempt to restrict access to medication abortion, but the fact remains that this baseless lawsuit should never have gone this far,” she said in a statement.
Danco Laboratories, maker of Mifeprex, a branded version of mifepristone, also praised the ruling, saying it was a good thing for the entire drug approval process.
Company spokeswoman Abigail Long said that by rejecting the challenge, the court “upheld the stability of the FDA’s drug approval process, which is based on FDA expertise and on which patients, health care providers and the U.S. pharmaceutical industry rely.”
Anti-abortion groups expressed disappointment, saying the ruling underscores the importance of this year’s election, which pits Democrat Biden, who has pledged to protect abortion rights, against Republican Donald Trump, who has strong support from anti-abortion conservatives.
“Joe Biden and the Democrats are determined to mandate abortion on demand, at any time, for any reason, including DIY abortion by mail, in every state in the country,” said Marjorie Dannen-Pfizer, president of SBA Pro-Life America.
If Trump wins the election, his FDA appointees would be in a position to impose new regulations on mifepristone.
The battle over mifepristone is not the only abortion case currently before the court: The case will also determine whether Idaho’s strict anti-abortion laws prevent emergency room doctors from performing abortions when pregnant women face dangerous complications.
Mifepristone is currently used as part of an FDA-approved two-drug combination, the most common method of abortion in the United States.
Abortion is effectively banned entirely in 14 states, according to the Guttmacher Institute, a research group that supports abortion rights.
The FDA is backed by the pharmaceutical industry, which has warned that allowing untrained federal judges to question the approval process could create confusion and stifle innovation.
Last year, U.S. District Judge Matthew Kacsmarik in Texas issued a sweeping ruling that completely invalidated the FDA’s approval of the pill, sparking panic among abortion rights activists that the pill would be banned nationwide.
The Supreme Court put the decision on hold in April last year, leaving the pill widely available while the litigation continued.
The New Orleans-based 5th U.S. Circuit Court of Appeals in August narrowed Kacsmarik’s ruling but upheld his conclusion that the FDA’s move to lift regulations from 2016 was unlawful.
Both sides appealed to the Supreme Court, which in December took up the Biden administration’s appeal defending the FDA’s subsequent decision, opting not to hear the challenge to mifepristone’s initial approval in 2000.
The Supreme Court focused solely on subsequent FDA actions, including its first decision in 2021 that made the drug available by mail, which was finalized last year.
