The Latest | The US Supreme Court rules to preserve access to the abortion pill mifepristone

WASHINGTON -- The U.S. Supreme Court on Thursday ruled unanimously to preserve access to the drug most commonly used in medication abortion. The nine justices found that abortion opponents lacked the legal right to sue over the Food and Drug Administration's approval of mifepristone and the FDA's subsequent actions to ease restrictions on getting it.

The medication was used in nearly two-thirds of all abortions in the United States last year.

The ruling is the court's first abortion decision since conservative justices overturned Roe v. Wade two years ago.

Justice Brett Kavanaugh, who was part of the majority to overturn Roe, wrote for the court that “federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions.”

The case had threatened to restrict access to mifepristone across the country, including in states where abortion remains legal.

While the ruling drew praise from reproductive rights groups and many Democrats, some people suggested the fight over abortion rights and women's health care was not over.

U.S. President Joe Biden said the ruling “does not change the fact that the right for a woman to get the treatment she needs is imperiled if not impossible in many states.”

Meanwhile, the attorney who represented anti-abortion doctors and their organizations in the case said the push to restrict abortion pills likely won't stop.

Currently:

— Read the full ruling from the Supreme Court here

— The U.S. Supreme Court just ruled on Mifepristone. How safe is the abortion pill?

— What is the case about? The central dispute was whether the FDA overlooked serious safety problems when it made mifepristone easier to obtain

— Key takeaways: Several justices pressed for real-life examples, and other key moments from arguments in March

— Check out the status of abortion rights state by state

Here's the latest:

Thousands of women in states with abortion bans and restrictions are receiving abortion pills in the mail from states that have laws protecting prescribers, a new report showed.

The release of the #WeCount survey shows about 8,000 women a month in states that severely restrict abortion or place limits on having one through telehealth services were getting the pills by mail by the end of 2023, the first time a number has been put on how often the medical system workaround is being used.

The research was conducted for the Society of Family Planning, which supports abortion rights.

Access to mifepristone largely depends on the laws in the state where a patient lives and in the case of states banning or restricting mifepristone, what steps people are willing to take to circumvent them.

About half of all U.S. states allow online prescribing and mail delivery of mifepristone, conforming to the Food and Drug Administration's label for the drug.

Currently, 14 states are enforcing bans on abortion at all stages of pregnancy. Another dozen or so states have laws specifically limiting how mifepristone can be prescribed, such as requiring an in-person visit with a physician or separate counseling about the potential risks and downsides of the drug.

Those steps are not supported by major medical societies, including the American Medical Association.

Although the U.S. Supreme Court ruled to protect access to the abortion medication mifepristone on Thursday, finding that the plaintiffs did not have the legal right to sue over the Food and Drug Administration's approval of the drug, the legal claims in the case could be revived.

Three states previously joined the case seeking to restrict access to mifepristone, putting them in a position to now revive legal claims against it.

One of those states was Kansas, where state Attorney General Kris Kobach said in a statement Thursday that the states are better positioned to challenge access to the drug.

“It is essential that this case continue in order to ensure that the FDA operates within the law,” he said in a statement.

Mifepristone was used in about two-thirds of all abortions in the U.S. last year and is sometimes used in combination with misoprostol to end a pregnancy.

As anti-abortion groups quickly released statements expressing dismay over Thursday’s abortion pill ruling from the U.S. Supreme Court, Republican lawmakers were largely quiet — marking a stark contrast to the flood of Democrats praising the ruling.

U.S. Rep. Mike Lawler, a moderate-leaning Republican running for reelection in New York City’s northern suburbs, was one of the few GOP members to not only comment on the decision but also praise it.

“As I said when running for Congress, I do not support any efforts to establish a national ban on abortion, whether it be through Congress or through the judicial system,” Lawler said in a statement. “The Supreme Court’s decision today to preserve access to mifepristone is an important one and I am thankful that they heeded my call earlier this year to stand down on this issue.”

At least one state has gone further to restrict access to abortion pills with an action that’s not expected to be affected by Thursday’s ruling by the U.S. Supreme Court.

Louisiana last month adopted a law classifying mifepristone — and also misoprostol, a drug it’s usually used in combination with — as controlled and dangerous substances, which could make it harder to prescribe and obtain them.

The law, which is to take effect Oct. 1, would exempt from prosecution pregnant women who obtain the drugs without a prescription for their own use.

Dozens of Democrats and abortion rights groups released statements Thursday suggesting they were pleased to see the U.S. Supreme Court uphold the federal government’s approval of mifepristone, the drug most commonly used in medication abortions.

But it was clear in the wake of the ruling that Election Day wasn’t far from anyone’s mind, with many of those statements reminding people of other ways abortion access is threatened around the United States.

Millions of women are still unable to access mifepristone in more than a dozen states that have nearly banned abortion.

“Today, this critical medication remains approved and available,” said U.S. Health and Human Services Secretary Xavier Becerra, the nation’s top health official.

But, he added: “Let’s be clear: women’s health remains under attack. The overturning of Roe v. Wade paved the way for attacks on reproductive rights and women’s ability to make their own decisions about abortion, birth control, and (in vitro fertilization). Every day, women in states across America are forced to live with the devastating consequences of these attacks on reproductive rights.”

Democrats are hoping that the U.S. Supreme Court’s 2022 decision to overturn the constitutional right to an abortion will give them a boost at the polls in this year’s election, especially with women voters.

The New York-based Danco Laboratories, which makes mifepristone, said the U.S. Supreme Court decision on Thursday “safeguards access to a drug that has decades of safe and effective use.” The drugmaker also said the ruling maintains “the stability of the (Food and Drug Administration) drug approval process, which is based on the agency’s expertise and on which patients, healthcare providers and the US pharmaceutical industry rely.”

The decision by a U.S. district court judge out of Texas last year that catapulted this case to the Supreme Court marked the first time a court had issued a decision to revoke approval of a drug the FDA had deemed safe.

An open letter signed by nearly 300 biotech and pharmaceutical company leaders last year slammed the Texas ruling as undermining Congress’ delegated authority to the FDA to approve and regulate drugs. If justices can unilaterally overturn drug approvals, they said, “any medicine is at risk.”

Pharmaceutical Research and Manufacturers of America, a lobbying group representing U.S. pharmaceutical companies, applauded Thursday's ruling, saying, “We are pleased to see today’s decision from the U.S. Supreme Court which helps provide innovative biopharmaceutical companies the certainty needed to bring future medicines to patients.”

U.S. District Judge Matthew Kacsmaryk has been at the center of the battle over mifepristone since he sparked a legal firestorm last year by ruling to halt the Food and Drug Administration's approval of the pill.

This set off a chain of events that brought the case before the U.S. Supreme Court.

An appointee of former President Donald Trump, Kacsmaryk is also the only district court judge in the Texas panhandle city of Amarillo, which means all cases filed there land in front of him. The number of lawsuits by conservative groups that have been filed in Amarillo have led to accusations of “judge shopping,” or purposefully seeking out a judge who’s likely to rule in your favor.

Kacsmaryk was confirmed in 2019 amid fierce opposition by progressive groups for his record opposing LGBTQ+ groups. Since then, his decisions have restricted birth control access, and he has ruled against the Biden administration on issues including LGBTQ+ protections and immigration.

He is also a former federal prosecutor and lawyer for the conservative First Liberty Institute.

In a statement, U.S. Vice President Kamala Harris used the decision to try to draw a contrast between President Joe Biden and his presumptive Republican opponent in the presidential election, former President Donald Trump.

“This ruling does not change the fact that millions of American women are today living under cruel abortion bans because of Donald Trump,” Harris said. “Nor does this ruling change the threat to medication abortion. We know the Trump team has a plan to try to end access to medication abortion and carry out a Trump Abortion Ban in all 50 states, with or without Congress, if they get the chance. We cannot and will not let that happen.”

Democratic lawmakers celebrated Tuesday's U.S. Supreme Court ruling as a major win for reproductive rights but warned of continuing attacks on abortion rights from their conservative counterparts.

Senate Majority Leader Chuck Schumer expressed relief on the decision, but said, “We are not out of the woods,” acknowledging that it was “based not on the merits, but on the lack of standing.”

Former House minority leader Nancy Pelosi said it was “the right decision for millions of women nationwide.”

Sen. Elizabeth Warren of Massachusetts said the challenge to mifepristone “was meritless from the start.”

Rep. Pramila Jayapal of Washington said, “This is a massive victory for abortion access, but there is no question — we must codify access to reproductive care nationwide.”

Democratic Attorney General William Tong of Connecticut, one of 24 states that filed an amicus brief for the case, warned that anti-abortion advocates “have already started the process of coming back with new plaintiffs.”

The push to restrict abortion pills likely won’t stop with the U.S. Supreme Court’s ruling, the lawyer who represented anti-abortion doctors and their organizations in the case said.

The justices’ finding that the doctors don’t have the legal right to sue leaves open possible arguments from others, including three other states who had previously been allowed to join the case, said Erin Hawley, an attorney for the group Alliance Defending Freedom.

Hawley said she expects Idaho, Kansas and Missouri to continue the lawsuit originally filed in Texas.

Attorneys general for those states did not immediately respond to requests for comment on whether and how they might continue to suit originally filed before U.S. District Judge Matthew Kacsmaryk.

U.S. President Joe Biden celebrated Thursday's decision by the U.S. Supreme Court to preserve access to mifepristone, a pill used in the most common method of abortion. He reaffirmed the safety and efficacy of mifepristone, but — echoing the language of many abortion rights groups — said that the ruling “does not change the fact that the right for a woman to get the treatment she needs is imperiled if not impossible in many states.”

He warned that attacks on medication abortion would continue.

“The stakes could not be higher for women across America,” he said.

Women of color advocating for abortion access have pointed out that restricting access to mifepristone could worsen racial health disparities. They argue that individuals of color and pregnant people from marginalized communities are more likely to face systemic barriers that limit their access to abortion and other reproductive health care. As a result, they rely on methods like medication abortion.

Monica Simpson, executive director of SisterSong, the nation’s largest organization dedicated to reproductive justice for women of color, said communities of color are more likely to live in reproductive health care deserts, use Medicaid or live in states with abortion bans.

“Having all of our options for abortion access is critically important for our community as attacks on mifepristone impact those who have historically been pushed to the margins the most,” she said.

Dr. Jamila Perritt, president and CEO of Physicians for Reproductive Health, said mifepristone is “critical” because of “its importance in expanding abortion access for our community members, especially those living at the intersections of systemic oppression disproportionately harmed by abortion bans and restrictions.”

Justice Brett Kavanaugh's comments in the U.S. Supreme Court's ruling on access to the abortion medication mifepristone highlighted what's at stake in the presidential 2024 election and the possibility that an FDA commissioner appointed by Republican Donald Trump, if he wins the White House, could consider tightening access to mifepristone.

The plaintiffs in the mifepristone case — anti-abortion doctors and their organizations — had argued in court papers that the Food and Drug Administration’s decisions in 2016 and 2021 to relax restrictions on getting the drug were unreasonable and would “jeopardize women’s health across the nation.”

Kavanaugh acknowledged what he described as opponents’ “sincere legal, moral, ideological, and policy objections to elective abortion and to FDA’s relaxed regulation of mifepristone.”

Federal laws already protect doctors from having to perform abortions, or give any other treatment that goes against their beliefs, Kavanaugh wrote.

“The plaintiffs have not identified any instances where a doctor was required, notwithstanding conscience objections, to perform an abortion or to provide other abortion-related treatment that violated the doctor’s conscience since mifepristone’s 2000 approval,” he wrote.

In the end, Kavanaugh wrote, the anti-abortion doctors went to the wrong forum and should instead direct their energies to persuading lawmakers and regulators to make changes.

Thursday's U.S. Supreme Court ruling on access to mifepristone referenced another important abortion case the court is considering — the legality of Idaho’s abortion ban, which only allows doctors to perform abortions if the pregnant woman’s life is at risk.

U.S. President Joe Biden's administration has argued that Idaho's law conflicts with a longstanding federal law that has shaped emergency room care.

The Emergency Medical Treatment and Active Labor Act, also called EMTALA, requires emergency rooms to provide all patients who present at their hospital with stabilizing treatment, which might include abortions in extreme cases.

The court appeared sharply divided over the case when it heard arguments in April. But in the ruling released Thursday on mifepristone, the justices referred several times to EMTALA. The justices unanimously agreed with the Biden administration’s point that the federal law does not require doctors to perform an abortion if they object to it.

The law “neither overrides neither overrides federal conscience laws nor requires individual emergency room doctors to participate in emergency abortions,” the justices wrote.

That’s an important point for the justices to agree on, particularly for the conservative members who oppose abortion.

Following the U.S. Supreme Court's Thursday ruling to preserve access to the abortion pill mifepristone, anti-abortion groups denounced the decision.

“It is a sad day for all who value women’s health and unborn children’s lives, but the fight to stop dangerous mail-order abortion drugs is not over,” said Kate Daniel, state policy director for SBA Pro-Life America.

Kristan Hawkins, president of Students for Life of America: Hawkins called the decision “disappointing but not surprising,” expressing concern for the “conscience rights of the pro-life doctors.”

Reproductive rights groups across the country expressed relief over Thursday’s ruling from the U.S. Supreme Court, but almost all stressed that the decision marked but a small win in the long-term battle over abortion access.

“Even with this baseless challenge defeated, we must remain vigilant,” said Destiny Lopez, acting co-CEO of the Guttmacher Institute. “The anti-abortion movement is ruthlessly pursuing its end goal of banning abortion nationwide.”

Jennifer Dalven, director of the ACLU Reproductive Freedom Project, warned that attacks on medication abortion are still taking place even after the court's ruling, saying that “anti-abortion politicians are waiting in the wings to attempt to continue pushing this case before an extremist judge in Texas in an effort to deny people access to medication abortion care.”

Many others pointed out that it was hard to celebrate the dismissal of the case when several states have enacted their own abortion restrictions.

“Despite the Supreme Court’s decision today, millions of people will still have restricted access to the health care they deserve,” The Democratic Legislative Campaign Committee said in a statement.

When the U.S. Supreme Court heard oral arguments for the case in March, the safety of mifepristone was at the heart of the debate.

There are rare occasions when mifepristone can cause dangerous, excessive bleeding that requires emergency care. Because of that, the Food and Drug Administration imposed strict safety limits on who could prescribe and distribute it.

The doctors also had to be capable of performing emergency surgery to stop excess bleeding and an abortion procedure if the drug didn’t end the pregnancy. Over the years, the FDA reaffirmed mifepristone’s safety and repeatedly eased restrictions, culminating in a 2021 decision doing away with any in-person requirements and allowing the pill to be sent through the mail.

Nancy Northup, president and CEO of the Center for Reproductive Rights, expressed relief at Thursday's decision by the U.S. Supreme Court on access to mifepristone but also expressed frustration that the case made it the court at all, calling it “meritless.”

“Unfortunately, the attacks on abortion pills will not stop here — the anti-abortion movement sees how critical abortion pills are in this post-Roe world, and they are hell-bent on cutting off access,” she added.

Mini Timmaraju, president and CEO of the national abortion rights group Reproductive Freedom for All, echoed similar feelings. While expressing relief she also said, “This baseless push to block abortion access should never have been heard by them in the first place.”

The mifepristone case began five months after the Supreme Court overturned Roe v. Wade. Abortion opponents initially won a sweeping ruling nearly a year ago from U.S. District Judge Matthew Kacsmaryk, a Trump nominee in Texas, that would have revoked the drug’s approval entirely.

The 5th U.S. Circuit Court of Appeals left intact the FDA’s initial approval of mifepristone, but it would reverse changes regulators made in 2016 and 2021 that eased some conditions for administering the drug.

The Supreme Court put the appeals court’s modified ruling on hold and agreed to hear the case. However, Justices Samuel Alito — the author of the decision overturning Roe — and Clarence Thomas would have allowed some restrictions to take effect while the case proceeded.

Health care providers have said that if mifepristone is no longer available or is too hard to obtain, they would switch to using only misoprostol, which is somewhat less effective in ending pregnancies.

U.S. President Joe Biden’s administration and drug manufacturers had warned that siding with abortion opponents in the case could undermine the FDA’s drug approval process beyond the abortion context by inviting judges to second-guess the agency’s scientific judgments. The Democratic administration and New York-based Danco Laboratories, which makes mifepristone, argued that the drug is among the safest the FDA has ever approved.

The abortion opponents argued in court papers that the FDA’s decisions in 2016 and 2021 to relax restrictions on getting the drug were unreasonable and “jeopardize women’s health across the nation.”

More than 6 million people have used mifepristone since 2000. Mifepristone blocks the hormone progesterone and primes the uterus to respond to the contraction-causing effect of a second drug, misoprostol. The two-drug regimen has been used to end a pregnancy through 10 weeks gestation.

The Supreme Court on Thursday unanimously preserved access to a medication that was used in nearly two-thirds of all abortions in the U.S. last year, in the court’s first abortion decision since conservative justices overturned Roe v. Wade two years ago.

The justices ruled that abortion opponents lacked the legal right to sue over the federal Food and Drug Administration’s approval of the medication, mifepristone, and the FDA’s subsequent actions to ease access to it.

The case had threatened to restrict access to mifepristone across the country, including in states where abortion remains legal.