In a likely turn of events, mifepristone, a drug commonly used in medication abortions, is set to remain widely available in the United States. This follows a Tuesday session in which the Supreme Court hinted at this possibility during approximately 90 minutes of oral arguments. A majority of the justices seemed prepared to reject the ongoing dispute over the FDA’s expansion of access to the drug in 2016 and 2021, suggesting that the objectors in the case— specifically some individual doctors and doctor groups opposed to abortion on religious or moral grounds — do not possess a legal right to sue, also known as ‘standing’. Details can be found on the recent SCOTUSblog post by Amy Howe.
This court session signified the first time the justices considered efforts to restrict abortion since their 2022 decision to revoke the constitutional right to an abortion in Dobbs v. Jackson Women’s Health Organization. Due to this ruling, 21 states either entirely banned or significantly limited access to abortion. Half of all abortions performed today in the United States are medication abortions, so a resolution in favor of the disputants in this case could potentially limit access to abortions even in states where they are otherwise legal.
The present debate primarily concerns whether the challengers possess standing, which would allow the lawsuit to continue. U.S. Solicitor General Elizabeth Prelogar, representing the FDA, argued that the lawsuit can only proceed if the challengers are able to identify a doctor who faces immediate harm due to the 2016 and 2021 changes. Prelogar contended that the challengers’ standing argument lies on a “long chain of remote contingencies”.
The final decision, expected this summer, could play an essential role in the current legal landscape concerning abortion rights, depending on whether the justices view the objectors’ standing and alleged injuries as sufficient grounds for legal action. If the verdict falls in favor of the FDA and Danco, the manufacturer of mifepristone, the ruling could maintain widespread access to the drug across the country.