GOP Vows to Keep Fighting Mifepristone After Supreme Court Keeps It Legal

In a unanimous ruling, the U.S. Supreme Court dismissed a challenge to the Food and Drug Administration’s 24-year-old approval of mifepristone, a common gynecological drug also used for medication abortion, ruling that the plaintiffs did not have legal standing to bring the suit in the first place. The ruling keeps mifepristone legal across the country — at least for now.

Under the Constitution, a plaintiff must be suffering some concrete injury to bring a federal lawsuit. In the mifepristone case — FDA v. Alliance for Hippocratic Medicine — the suit was brought by a collection of anti-abortion advocates, some of them doctors, who neither provide abortion care nor prescribe mifepristone. Nonetheless, they claimed that somehow, someday they may be forced to treat a patient suffering complications from taking mifepristone, which they said granted them the right to sue.

The Supreme Court didn’t buy it. “The plaintiffs do not prescribe or use mifepristone,” and the FDA approval doesn’t require them to do so, Justice Brett Kavanaugh wrote for the court. “Rather, the plaintiffs want FDA to make mifepristone more difficult for other doctors to prescribe and for pregnant women to obtain.” Their desire to make the drug “less available for others does not establish standing to sue.”

The plaintiffs have long made the demonstrably false claim that mifepristone is frighteningly unsafe — indeed, research making this claim was recently retracted by its publisher. Kavanaugh’s opinion seems to acknowledge what mainstream medicine and science have said about those claims: that mifepristone is safe, and there is no evidence that the FDA’s actions have led to increased safety issues or drug complications.

Although the court made quick work of dismantling the Alliance’s claims, the future legal status of mifepristone is most certainly still in the crosshairs.

In January, the states of Missouri, Kansas, and Idaho sought to intervene in the Alliance lawsuit, arguing that they have standing to sue because of their “quasi-sovereign interest” in protecting the “health and welfare of women and girls in their states” against the dangers of mifepristone so recklessly ignored by the FDA. Their effort to join in the legal action before the Supreme Court was denied, but their efforts at intervention are still alive in the lower courts.

In statements just after the Supreme Court’s Thursday morning ruling, the attorneys general of Kansas and Missouri vowed to press their case. “We are moving forward undeterred with our litigation to protect both women and their unborn children,” Missouri Attorney General Andrew Bailey said.

And Idaho is fighting to roll back abortion access in other ways as well. Still outstanding from the Supreme Court this term is a ruling in another consequential case — Idaho v. United States — where the state is challenging long-standing federal law that requires hospitals to provide whatever emergency medical treatment is necessary to stabilize a patient, including abortion. That opinion is expected later this month.

A Cynical Endeavor

Mifepristone is the first drug in the standard two-medication abortion protocol. The FDA approved the drug in 2000 for use in early pregnancy termination. Mifepristone, which blocks the hormone progesterone (needed to maintain pregnancy) and softens the uterine lining, is taken first. The second drug, misoprostol, is taken 24 to 48 hours later and causes the uterus to contract, expelling the pregnancy. Medication abortion accounted for just 5 percent of abortions in 2001 and has since grown — particularly in the wake of the Supreme Court’s 2022 Dobbs decision — and now accounts for more than 60 percent of all abortions in the U.S. The protocol is also commonly used in miscarriage management.

Over the years, the FDA has loosened restrictions around mifepristone — including increasing the window for its use up to 10 weeks into pregnancy and doing away with a requirement that doctors dispense the drug in person. The anti-abortion groups at the heart of the Alliance lawsuit didn’t like any of these developments and have long claimed — devoid of any scientific backing — that mifepristone is a uniquely dangerous drug and instead of being liberalized should be banned altogether.

From the jump, the Alliance suit was a cynical, propagandistic endeavor. The Alliance is an umbrella organization made up of the American Association of Pro-Life Obstetricians and Gynecologists, the Christian Medical & Dental Association, the American College of Pediatricians, the Catholic Medical Association, and the Coptic Medical Association of North America. The members of these five well-known affinity groups have long been vocal about their anti-abortion views.

The Alliance itself, however, is new: It incorporated in Texas’s Panhandle just three months before filing its lawsuit there — an obvious ploy to draw federal Judge Matthew Kacsmaryk, a far-right darling, who is the lone judge in Amarillo tasked with hearing cases filed in the area. Kacsmaryk did not disappoint: In a raving opinion lifted from the pages of an anti-abortion talking-point glossary, he said the groups and their individual plaintiff doctors had the right to sue, and he issued a sweeping nationwide injunction that would block anyone, anywhere from using mifepristone for any reason.

The federal government appealed to the 5th U.S. Circuit Court of Appeals, which ultimately disagreed that mifepristone should be banned altogether, but did block the FDA’s more recent moves to increase its availability. In other words, the appeals court ruled that mifepristone could only be available under the most stringent of rules, rolling back the widely accepted medical standard of care.