WASHINGTON – Access to mifepristone abortion pill will not change after the US Supreme Court unanimously rejected an attempt on Thursday by anti-abortion groups to reduce its availability, a victory for abortion rights advocates and for millions of women in states where abortion is legal.
Despite the ruling, women’s access to mifepristone still largely depends on a patchwork of state laws, with only about half of states allowing full access under federally approved terms.
“It doesn’t change anything anywhere,” said David S. Cohen, a law professor at Drexel University. “Tomorrow is the same as today, which is the same as yesterday, which is the same as before this case was opened.”
Here’s a look at what Thursday’s decision does or doesn’t mean for abortion access.
Essentially, the justices said that the anti-abortion doctors who brought the case did not have legal standing to sue the Food and Drug Administration (FDA) over the drug’s safety or changes that made it more widely available. The FDA approved the drug more than 20 years ago and reiterated its safety and effectiveness.
Anti-abortion doctors, under the name the Alliance for Hippocratic Medicine, argued that they might have to treat emergency patients who suffered serious injuries after taking mifepristone.
While the ruling keeps mifepristone available, legal experts say other groups or individuals who believe they can demonstrate a stronger legal connection to the drug may seek to sue in a similar way.
“It is a victory that the status quo is preserved, but that does not mean that these arguments are now dead and that others will not try to pursue it,” said Rachel Rebouche, a law professor at Temple University.
Mifepristone is prescribed to terminate pregnancy by dilating the cervix and blocking the hormone progesterone, which is needed to sustain the pregnancy. It is usually taken with a second medication, misprostol, which causes cramping and contraction of the uterus. The two-drug regimen is used to terminate a pregnancy up to 10 weeks.
Mifepristone remains fully approved and available under the current FDA framework, which allows for telehealth prescribing and mail delivery to patients. The FDA has also expanded availability to large pharmacy chains and allowed prescription by nurses and other health professionals.
These policies increased the prescription of mifepristone, which accounted for nearly two-thirds of all abortions in the US last year.
Access to the pill is restricted in large swaths of the country due to state laws that outright ban abortion (including medication abortion) or impose separate restrictions on the drug’s use.
Access largely depends on the laws of the state where the patient lives and, in the case of states that ban or restrict mifepristone, the steps they are willing to take to get around them.
About half of U.S. states allow online prescribing and mail delivery of mifepristone, in compliance with the FDA label for the drug.
At the moment, 14 States Are Imposing Abortion Bans at all stages of pregnancy, including with mifepristone. More than a dozen other states have laws that specifically limit how it can be prescribed, such as requiring an in-person consultation with a doctor or separate counseling about the drug’s potential risks and drawbacks.
These measures are not supported by major medical societies, including the American Medical Association.
The FDA and the Biden administration filed several legal challenges that reiterated the drug’s safety and effectiveness.
Mifepristone results in complete abortion 97.4% of the time, according to the FDA label. Like all medications, the abortion pill is not 100% effective and in 2.6% of cases surgical intervention was necessary to complete the abortion. Less than 1% of the time, the pregnancy continued.
In rare cases, mifepristone can cause serious complications, including excessive bleeding, infections, and other emergency problems. This occurs in far less than a fraction of 1% of all patients using the drug, according to the FDA label.
Despite state laws targeting mifepristone, statistics show that women in these states continue to receive the medication in the mail because state officials have little visibility into U.S. Postal Service deliveries.
A survey earlier this year found that about 8,000 women per month in states that restrict abortion or place limits on telehealth prescribing were receiving the pills in the mail by the end of 2023, according to the Family Planning Society.
Legal experts say other parties may file new lawsuits.
Idaho, Kansas and Missouri sought to join the case against the FDA and the Biden administration, which the Supreme Court rejected — although a conservative Texas judge who initially ruled against the FDA allowed them to intervene in the case in his district. The three states, all led by Republican attorneys general, could try to revive the case in the first instance, according to legal experts.
“They are not doctors who need to show that they actually have something to do with abortion care,” Rebouche said. “They’re claiming a state interest in regulating medicine, so I think that’s the vehicle in which you could see a lawsuit moving forward.”
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Geoff Mulvihill contributed to this story from Cherry Hill, NJ
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