Even after the Supreme Court‘s decision on Thursday to maintain the availability of abortion pills in 36 states, anti-abortion organizations continue to fight for access to these medications through the legal system.
Even while the court’s decision was unanimous, it was nevertheless rather narrow. The justices concurred that anti-abortion physicians lacked standing to file a lawsuit against the Food and Drug Administration for its recent actions, which facilitated the acquisition of mifepristone, one of the two medications used in medication abortions.
This decision doesn’t really slow down the larger push to limit access.
Three states intend to file a lawsuit in federal district court to increase the difficulty of obtaining the tablets. Attorneys for reproductive rights also foresee attempts on the part of lawmakers or anti-abortion campaigners to bring back a 151-year-old federal statute that may forbid mailing abortion drugs. Similar restrictions are anticipated by other proponents of abortion access under a second Trump presidency.
Clara Spera, senior attorney at the National Women’s Law Center, stated that “The current case will not reverse the trend of opposition to women’s health and reproductive care”.
Missouri, Kansas, and Idaho plan to file separate suits. Earlier this year, after the Supreme Court had already heard the FDA’s appeal of lower court decisions that would have limited access to the medicine, those states were able to effectively intervene in the case in federal district court in Amarillo, Texas.
Julia Kaye, a senior staff attorney at the ACLU Reproductive Freedom Project, stated, “The attorneys general of Idaho, Missouri, and Kansas may pursue the same case as it is now in Amarillo, or those states may file new lawsuits elsewhere against mifepristone with the same pseudoscientific arguments in an attempt to restrict access to the drug on a national level.”
It will probably be hotly argued whether the states can successfully assume control of the case from the group of anti-abortion doctors who filed the first lawsuit. According to some legal experts, the complaint ought to be dismissed in its entirety because the Supreme Court has now decided that the original plaintiffs lacked standing.
“I think the Texas case has to end if the plaintiffs don’t have standing,” stated Adam Unikowsky, a Washington-based attorney who has represented clients before the Supreme Court.
However, the CEO and general counsel of the Alliance Defending Freedom, a conservative Christian legal organization that represented the doctors who filed a lawsuit against the FDA, Kristen Waggoner, stated that she anticipates the matter going to trial.
She declared, “The states will be litigating it, and we will continue to support the states.” Thus, the situation is far from resolved.
According to Waggoner, governments have the right to continue pursuing the following two arguments: She stated that the first is that state law is superseded by permitting abortion drugs to be mailed. Second, she claimed, is that states suffer financial losses from having to provide medical care for women who become ill from the negative effects of the tablets.
“To help protect and support women in need, states will have to provide more help and more assistance, which is essentially public funds and state resources,” the speaker declared.
36 states as well as Washington, D.C. allow medication abortions in some capacity. It accounted for 63% of abortions performed in the United States in 2023, up from over 50% in 2020, according to data from the Guttmacher Institute, a research group that promotes access to abortion.
There is a 0.4% chance of serious complications with the typical two-pill medical abortion protocol.
Reproductive rights attorneys predicted that anti-abortion organizations will look for other plaintiffs to assist in launching fresh legal challenges against abortion medicines.
“I anticipate a pursuit for plaintiffs who meet the court’s standing requirements,” stated Jill Habig, the founder of Public Rights Project, a nonprofit organization that collaborates with state and local authorities to uphold civil rights legislation.
In an opinion accompanying Thursday’s ruling, Justice Brett Kavanaugh stated that the anti-abortion physicians had not been able to prove that the FDA’s modifications to mifepristone availability had harmed them.
The FDA expanded the window in 2016 for the use of mifepristone to end pregnancies from seven to ten weeks gestation. Additionally, it eliminated the need for mifepristone to be given in person in 2021, enabling the medication to be shipped by mail and given via telehealth.
According to Kavanaugh, “The wish of a plaintiff to restrict access to a medicine does not give them legal standing to sue.” The plaintiffs, however, want the FDA to make it harder for other medical professionals to prescribe and for expectant mothers to buy mifepristone.
Reproductive rights attorneys claimed that the Supreme Court’s ruling allows lawmakers who oppose abortion to apply the Comstock Act, an 1873 statute that prohibits the sending of “obscene” items, including contraception and abortion-related devices.
The statute has been used by anti-abortion organizations as proof that mailing abortion drugs is unlawful, but the Justice Department under the Biden administration has rejected that theory. Whether the Comstock Act was pertinent to the case was a topic of discussion during the Supreme Court’s oral arguments in March; however, this issue was not covered in the court’s decision on Thursday.
According to Habig, the ruling on Thursday “says nothing about whether or not the Comstock Act can be used to restrict abortion-related medications in the future.”
Legal action might not be as dangerous to mifepristone access as a reelection of former President Donald Trump in November. Despite his recent attempts to disassociate himself from the abortion debate, Trump was elected in 2016 with a sizable backing from conservatives who oppose abortion. Subsequently, he nominated three justices to the Supreme Court, who formed the majority that reversed the historic Roe v. Wade decision regarding abortion rights in 2022.
A second Trump administration might try to undo the FDA’s efforts to increase mifepristone’s accessibility, including the decision to mail order the medication.
“Even if we do not have an anti-choice president, we do have an anti-choice Congress. Nevertheless, efforts will be made to simply resurrect the Comstock Act and use that to outlaw mifepristone” Habig stated.
Proponents of abortion rights stated that they also expect more states to attempt criminalizing abortion drugs, similar to what Louisiana did in May. The first state to designate abortion medicines as Category IV banned substances—making it illegal to possess the pills without a prescription—was Louisiana.
Habig also voiced concerns about potential attempts by authorities to monitor women who obtain abortion drugs online or through telemedicine.
“There will be increased endeavors to obstruct women in states that oppose abortion from obtaining the necessary medical care from states that support it,” she said.