The Supreme Court ‘s ruling on technical grounds Thursday keeps the abortion pill mifepristone available in the U.S. for now, but it won’t be the last word on the issue, and the unanimous opinion offers some clues for how abortion opponents can keep trying to deny it to women nationwide.
Some state attorneys general have indicated that they’ll press ahead, though they haven’t laid out exactly how.
And while the ruling said the anti-abortion doctors who brought the lawsuit failed to show they’ve been harmed when others use the drug, that might not stop some other plaintiff from a successful challenge.
“The decision is good that the doctors don’t have standing,” said Dr. Rebecca Gomperts, director of Aid Access, an abortion pill supplier working with U.S. providers. “The problem is, the decision should have said that nobody has standing in this case – that only the women have standing.”
Justice Brett Kavanaugh’s opinion even provides a road map for people with “sincere concerns about and objections to others using mifepristone and obtaining abortions.”
“Citizens and doctors who object to what the law allows others to do may always take their concerns to the Executive and Legislative Branches and seek greater regulatory or legislative restrictions on certain activities,” he wrote.
That route would be more likely to work for them if Republican Donald Trump is elected president in November than if Joe Biden remains in office.
The Alliance for Hippocratic Medicine sued the Food and Drug Administration in 2022, a few months after the Supreme Court overturned Roe v. Wade and ended the nationwide right to abortion. Most GOP-controlled states had implemented new bans or limits on abortion by then. The anti-abortion doctors sought a ruling that would apply nationwide, asking judges to find that the FDA wrongly approved and eased access to mifepristone.
A federal judge in Texas and the New Orleans-based U.S. 5th Circuit Court of Appeals validated many of the group’s arguments, making some Democratic-controlled states nervous enough to stockpile abortion pills.
Most medication abortions use a combination of mifepristone, which is also used in miscarriage care, and another, misoprostol. The latter drug can also be used alone — but women are more likely to experience side effects that way.
About half the abortions across the nation involved such pills before Roe was overturned. By last year, the medication was used in nearly two-thirds, one survey found. Providers in some states are using telehealth appointments to prescribe and mail them to women in states with bans or restrictions. Underground networks distribute them, too.
After the doctors group filed suit, represented by Alliance Defending Freedom, a conservative Christian law firm, Republican attorneys general for Idaho, Kansas and Missouri tried to get involved. They were allowed into the case by U.S. District Judge Matthew Kacsmaryk, then denied an intervening role by the Supreme Court.
David S. Cohen, a law professor at Drexel University who studies abortion-related law, said that normally, intervenors like the states would not be allowed to continue if the main parties have their claims dismissed because they lack standing, but that’s not yet clear in this case, and the attorneys general aren’t giving up.
“We are moving forward undeterred with our litigation to protect both women and their unborn children,” Missouri Attorney General Andrew Bailey said on X.
When they were trying to intervene, the attorneys general contended that allowing mifepristone interferes with their ability to enforce their states’ abortion bans, and that state taxpayers could have to pay emergency room bills when women who use it have complications.
It’s no sure thing that the Supreme Court would accept such arguments as a reason to give the states standing, said Mary Ziegler, a historian at the University of California, Davis School of Law who studies abortion. “The court is leery of things that are speculative,” she said.
However, Ziegler said in a post on X Thursday that “One could read parts of this opinion as creating a roadmap to future plaintiffs.”
And she noted that the ruling made no mention of the Comstock Act, a 19th-century federal vice law that conservatives have argued can be invoked to prevent abortion pills from being shipped across state lines. The Biden administration does not interpret it that way — but another might. And if an abortion opponent takes charge as U.S. Health and Human Services secretary, they could revoke or alter the Food and Drug Administration’s approval of mifepristone.
Still another approach could be for Republican states to challenge the shield laws that seek to protect healthcare providers in some Democratic-controlled states when they prescribe pills to patients in states with abortion bans.
Jillian Phillips, a mother in North Brookfield, Massachusetts, who took mifepristone to help pass the remains of a pregnancy when she miscarried eight years ago, said it’s hard for her to think of Thursday’s ruling as a win for abortion rights, because of all it could lead to.
“My fear is always that when we make a step forward,” she said, abortion opponents “get even more desperate to put even more barriers in place and restrict things even further.”
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Associated Press reporters Kimberlee Kruesi in Nashville, Tennessee, and Laura Ungar in Louisville, Kentucky, contributed to this article.
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