US Supreme Court preserves access to abortion pill mifepristone

[June 14, 2024]  By Andrew Chung

(Reuters) -The U.S. Supreme Court rejected a bid by anti-abortion groups and doctors to restrict access to the abortion pill, handing a victory on Thursday to President Joe Biden's administration in its efforts to preserve broad access to the drug.

The justices, two years after ending the recognition of a constitutional right to abortion, ruled 9-0 to overturn a lower court's decision to roll back U.S. Food and Drug Administration steps in 2016 and 2021 that eased how the drug, called mifepristone, is prescribed and distributed. The decision was authored by conservative Justice Brett Kavanaugh.

The pill, given FDA regulatory approval in 2000, is used in more than 60% of U.S. abortions.

The justices ruled that the plaintiffs, who sued in Texas in 2022, lacked the necessary legal standing to pursue the case, which required that they show they have been harmed in a way that can be traced to the FDA.

The Supreme Court, which has a 6-3 conservative majority, in 2022 overturned its 1973 Roe v. Wade precedent that had legalized abortion nationwide, prompting 14 states to enact measures banning or sharply restricting the procedure.

Biden, a Democrat seeking a second term in office in the Nov. 5 U.S. election, took aim at Republican officials behind such bans, saying they want to outlaw abortion nationwide and that Thursday's ruling "does not change the fact that the fight for reproductive freedom continues."

"It does not change the fact that the Supreme Court overturned Roe v. Wade two years ago, and women lost a fundamental freedom. It 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," Biden added.

Kavanaugh wrote that even though the plaintiffs, led by a group called the Alliance for Hippocratic Medicine, do not prescribe or use mifepristone, they wanted the FDA to make it harder for other doctors to prescribe it and women to receive it.

"Under Article III of the Constitution, a plaintiff's desire to make a drug less available for others does not establish standing to sue," Kavanaugh wrote, referring to the constitutional provision laying out the authority of the U.S. government's judicial branch.

Kavanaugh rejected the argument made by the plaintiffs that the FDA's actions will force them to provide abortions, violating their consciences, because federal law already protects them.

A ruling in favor of the plaintiffs could have threatened the regulatory authority of the FDA over drug safety.

The plaintiffs targeted FDA regulatory actions in 2016 and 2021, including allowing for medication abortions at up to 10 weeks of pregnancy instead of seven, and for mail delivery of the drug without a woman first seeing a clinician in-person. The suit initially had sought to reverse FDA approval of mifepristone, but that aspect was rebuffed by a lower court.

Biden and other Democrats have sought to make abortion rights a central theme against Republicans in the election. Biden said he will continue to urge Congress to codify abortion rights in federal law. Biden noted that some state abortion bans include no exceptions for rape or incest.

"Women are being turned away from emergency rooms, or forced to go to court to plead for care that their doctor recommended or to travel hundreds of miles for care," Biden said. "Doctors and nurses are being threatened with jail time, including life in prison, for providing the health care they have been trained to provide. And contraception and IVF (in vitro fertilization) are under attack."

The Supreme Court by the end of June is expected to rule on the legality of Idaho's strict Republican-backed abortion ban that forbids terminating a pregnancy even if necessary to protect the health of a pregnant woman facing a medical emergency.

Boxes of Mifepristone, the first pill in a medical abortion, are seen at Alamo Women's Clinic in Carbondale, Illinois, U.S., April 9, 2024. REUTERS/Evelyn Hockstein/File Photo

In the 14 states that have banned abortion with limited exceptions, medical providers cannot prescribe or dispense mifepristone under state law. Patients in those states might continue to take the legal risk of ordering the pills online from providers in other states or they might travel out-of-state to legally obtain the pills.

THE FIGHT OVER MIFEPRISTONE

Erin Hawley, a lawyer with the Alliance Defending Freedom conservative Christian legal group representing the plaintiffs, expressed disappointment with the ruling, but said it was on a "legal technicality" and not the merits of the legal arguments.

The plaintiffs argued that the FDA acted contrary to its mandate to ensure that medications are safe when it eased restrictions on mifepristone. The plaintiffs accused the FDA of violating a federal law governing the actions of regulatory agencies.

Hawley said she expects the litigation to continue given that three states - Idaho, Missouri and Kansas - already have intervened in it.

"We are very hopeful that the federal courts will have a chance to hold the FDA accountable for its unlawful actions in removing these long-standing safeguards for women," Hawley said.

Mifepristone is taken with another drug called misoprostol to perform medication abortions.

The FDA has said that after decades of use by millions of women in the United States and around the world, mifepristone has proven "extremely safe," and that studies have demonstrated that "serious adverse events are exceedingly rare."

Abortion rights advocates and Democratic lawmakers expressed mixed emotions concerning Thursday's ruling.

"I have both relief and anger about this decision. Thank goodness the Supreme Court rejected this unwarranted attempt to curtail access to medication abortion, but the fact remains that this meritless case should never have gotten this far," Center for Reproductive Rights President Nancy Northup said.

Former U.S. President Donald Trump, the Republican candidate challenging Biden, pledged in April to disclose how his administration would regulate the abortion drugs if he is elected, but has yet to do so. His campaign did not address the issue directly when responding to Thursday's court's decision.

"President Trump has been very clear - he supports the rights of states to make decisions on abortion, supports exceptions for abortions in cases of rape, incest and life of the mother, and also strongly supports protecting access to contraception and IVF," said Trump campaign spokesperson Karoline Leavitt.

U.S. District Judge Matthew Kacsmaryk broadly sided with the plaintiffs in a 2023 decision that would have effectively pulled the pill off the market.

After the administration appealed, the New Orleans-based 5th U.S. Circuit Court of Appeals did not go as far as Kacsmaryk but still ruled against the FDA's decisions in 2016 and 2021 widening access to the pill. The 5th Circuit's ruling was placed on hold pending Supreme Court review.

In a May Reuters/Ipsos poll, 50% of respondents said they supported an in-person doctor visit requirement for abortion medication, while 33% said they opposed that rule. Some 57% of respondents in the poll said abortion should be legal in all or most cases, up from 46% in Reuters/Ipsos polls conducted a decade ago, while 31% of respondents said abortion should be illegal in most or all cases, down from 43% in 2014 polls.

(Reporting by Andrew Chung in New York; Additional reporting by Gabriella Borter and Jim Oliphant; Editing by Will Dunham)

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