Supreme Court rejects challenge to abortion pill access after Spokane judge blocked restrictions

WASHINGTON – The U.S. Supreme Court on Thursday ruled that mifepristone, a medication used in the majority of abortions in the United States, can remain available, rejecting a challenge by antiabortion groups that sought to undo the Food and Drug Administration’s longstanding approval of the medication.

In a 9-0 decision, the court’s six Republican-appointed justices joined with their three colleagues who were appointed by Democrats to rule that the plaintiffs did not have standing to bring the case, overturning decisions by a Texas trial judge and a Louisiana-based appeals court. That came after a federal judge in Spokane blocked restrictions on the drug in April 2023, siding with Washington’s Bob Ferguson and 17 of his fellow Democratic attorneys general in a separate case.

“This radical challenge to the use of mifepristone failed,” Ferguson said in a statement. “But it is not the first attack on reproductive freedom, and it won’t be the last.”

In the two years since the Supreme Court’s conservative supermajority overturned the nationwide right to abortion in June 2022, legislatures in Idaho and other GOP-controlled states have enacted near-total bans on terminating pregnancy. Meanwhile, antiabortion activists have turned their attention to mifepristone, which can be mailed across state lines.

The medication, first approved by the FDA in 2000, was used in 63% of abortions in 2023, according to the Guttmacher Institute, a research organization that supports abortion rights. It is also used to manage miscarriages and treat complications that can arise from pregnancy.

Rep. Russ Fulcher is one of 69 Republican lawmakers, including Sens. Mike Crapo and Jim Risch of Idaho, who filed a brief supporting the antiabortion groups that sued the FDA. In a statement, Fulcher said he was “thoroughly disappointed” by the court’s decision, calling mifepristone a “dangerous chemical abortion pill.”

“Mifepristone’s approval process was undoubtedly rushed by the FDA and puts women and children in the crossfire of a politically-driven abortion agenda,” said Fulcher, who represents North Idaho. “I will continue to do everything I can in Congress to protect the unborn and women.”

In November 2022, a newly formed antiabortion group called the Alliance for Hippocratic Medicine filed a lawsuit challenging the FDA’s approval of mifepristone in federal court in Amarillo, Texas, where the case was guaranteed to be heard by a judge with well-known antiabortion views. The plaintiffs, none of whom were patients who had been harmed by mifepristone, relied on speculative arguments about the pill’s potential harms.

The court’s opinion, authored by Justice Brett Kavanaugh, explained that the plaintiffs had failed the most basic test required to bring a case forward – establishing standing – because they didn’t prove they were harmed by the policy they sought to overturn.

To have standing, Kavanaugh wrote, a plaintiff must demonstrate an “injury in fact” that likely was or will be caused by the defendant. That requirement, he wrote, “screens out plaintiffs who might have only a general legal, moral, ideological, or policy objection to a particular government action.”

Linda Jellum, a law professor at the University of Idaho, said Kavanaugh’s opinion was written in accessible language, seemingly for the general public, to make clear that the court’s decision was “a no-brainer.” The fact that the case reached the Supreme Court, she said, speaks to the “political preferences” of the judge in Texas and the 5th Circuit Court of Appeals, whose rulings even the high court’s conservative justices have repeatedly overturned.

“Standing law is pretty clear, and these parties that were bringing the lawsuit did not have standing,” Jellum said in an interview. “This was an obvious outcome, assuming honest judges following the rule of law.”

Erin Hawley, a senior counsel at the Alliance Defending Freedom who argued the case before the court, nevertheless said she was disappointed by the justices’ ruling. The plaintiffs called for tougher restrictions on the drug, which their opponents dismissed as a cynical effort to effectively ban it in many states.

“The FDA recklessly leaves women and girls to take these high-risk drugs all alone in their homes or dorm rooms, without requiring the ongoing, in-person care of a doctor,” Hawley said in a statement. “While we’re disappointed with the court’s decision, we will continue to advocate for women and work to restore commonsense safeguards for abortion drugs.”

Hawley added that the Alliance Defending Freedom, a conservative legal advocacy group, was “grateful that three states stand ready to hold the FDA accountable for jeopardizing the health and safety of women and girls across this country.” That is an apparent reference to Idaho, Kansas and Missouri, which have intervened in a lower court and could still challenge the legality of mifepristone.

Deirdre Bowen, a law professor at Seattle University, said Kavanaugh’s ruling could serve as a roadmap for those states to bring more successful challenges to the medication’s use.

Sens. Patty Murray and Maria Cantwell, two Washington Democrats, both cautioned that the court’s ruling doesn’t mean the fight over mifepristone is over.

“American women can breathe a temporary sigh of relief with the Supreme Court rejecting on standing this blatantly political attack,” Murray said in a statement. “The ideological extremism by the plaintiffs in this case, who were represented by a designated hate group, should never have made it this far to begin with.”

In remarks on the Senate floor, Cantwell underscored that the court “didn’t reach any conclusion about the ludicrous arguments that the plaintiffs were making.”

“It’s a highly safe and effective medication, used by millions of Americans, and the court ruled on standing alone,” she said. “So America should not rest on this decision, because anti-choice activists are going to keep using the courts to target abortion. It’s just another reminder of why we have to fight for reproductive freedom and why we can’t rest.”

Bowen said it would be misleading to call the court’s decision unanimous, despite the 9-0 ruling, because it only narrowly addressed the question of standing without dealing with the rest of the case. In addition, Justice Clarence Thomas wrote a concurring opinion in which he argued that no plaintiff should be able to sue on the basis of another person’s rights.

In Washington state, Bowen said, the decision is “likely to take a little bit of the burden of providing reproductive services” off of the state, which has already seen an increase in patients traveling from states like Idaho for reproductive health care. While mifepristone can still be mailed to Idaho, she said, it is supposed to be prescribed by a provider who is licensed in Idaho.

Polling by the Pew Research Center shows that while Americans have complicated views on abortion, most want it to remain legal with some restrictions in the later stages of pregnancy, which were permitted until the Supreme Court overturned the half-century-old Roe v. Wade precedent. Mifepristone is approved for abortions in the first 10 weeks of pregnancy.

In the coming weeks, the Supreme Court is set to decide another abortion-related case that began when the Biden administration challenged Idaho’s near-total ban on abortion that went into effect when Roe v. Wade was overturned. That case relates to a federal law that requires doctors to treat patients in a medical emergency, which the Biden administration contends is at odds with the Idaho law.