Supreme Court to decide whether to restrict abortion drug nationwide

Dec 13, 2023, 7:49 AM | Updated: Dec 15, 2023, 5:23 pm

The U.S Supreme Court building....

The U.S Supreme Court is seen on Friday, Nov. 3, 2023, in Washington. (AP Photo/Mariam Zuhaib)

(AP Photo/Mariam Zuhaib)

(CNN) — The Supreme Court said Wednesday it will consider whether to restrict access to a widely used abortion drug — even in states where the procedure is still allowed.

The case concerns the drug mifepristone that — when coupled with another drug — is one of the most common abortion methods in the United States.

The decision means the conservative-leaning court will again wade into the abortion debate after overturning Roe v. Wade last year, altering the landscape of abortion rights nationwide and triggering more than half the states to outlaw or severely restrict the procedure.

The new case could be decided by July, inserting the Supreme Court into the middle of the presidential election, where abortion access is once again a key issue.

For now, mifepristone remains available and not subject to restrictions the lower courts have said should be imposed on its use. The high court determined in April that access to the drug would remain unchanged until the appeals process finishes.

The Biden administration and a manufacturer of the drug are asking the justices to reverse a federal appeals court decision that, if allowed to go into effect, would restrict access to the drug. At the same time, groups and doctors that oppose abortion want the justices to go even further than a conservative federal appeals court did and hold that the initial 2000 approval of the drug was also unlawful.

Behind the challenge

Central to the dispute is the scope of the US Food and Drug Administration’s authority to regulate mifepristone, a drug that the medical community has deemed safe and effective. It has been used by millions of women across the country in the more than two decades it’s been on the market.

The drug was initially approved by the FDA in 2000, but in 2016, 2019 and 2021, the FDA put in place modifications that would make the drug more easily accessible. Those modifications were related to issues such as dosing and in person dispensing requirements. The changes also allowed the drug to be taken later in pregnancy.

Challengers – including doctors and groups who oppose abortion – argue that the FDA did not do enough to study the safety implications of the drug when it approved its use and made it more easily accessible in subsequent years.

The legal volleying jumpstarted this spring, when US District Judge Matthew Kacsmaryk, an appointee of former President Donald Trump, issued a ruling that would have a halted the FDA’s 2000 approval of the drug.

The judge said that the FDA failed to consider “the intense psychological trauma and post-traumatic stress women often experience from chemical abortion.” The term “chemical abortion,” which is preferred by abortion opponents, was repeatedly invoked by the judge in his ruling, as was “abortionist” and “unborn human.”

Kacsmaryk also suggested that the FDA’s data was downplaying the frequency with which the drug was being mistakenly administered to someone who had an ectopic pregnancy, i.e. a pregnancy outside the cavity of the uterus. He repeated the challengers’ accusations that the FDA’s approval process had been the subject of improper political pressure.

At the 5th US Circuit Court of Appeals, the conservative court backtracked somewhat, saying that while it was too late for the challengers to mount a case against the initial 2000 approval of the drug and left in place the 2019 approval of a generic version of the drug, it would block changes made in 2016 and 2021 that made the drug more easily accessible.

“Because the drug could not safely be approved without restrictions, the agency conditioned its approval on numerous safeguards,” Erin Hawley, of the conservative Alliance Defending Freedom, told the justices in court papers. “Yet in 2016, FDA stripped away many of the safeguards, failing to explain why it was proper to eliminate them without a study showing their cumulative safety.”

In September, Solicitor General Elizabeth Prelogar appealed the decision to the Supreme Court, arguing in legal briefs that “more than half of American women who choose to terminate their pregnancies rely on mifepristone to do so” and that “study after study has shown that when mifepristone is taken in accordance with its approved conditions of use, serious adverse events are exceedingly rare.”

Prelogar said that if the lower court decision is allowed to take effect it would “up-end the regulatory regime for mifepristone, with damaging consequences for women seeking lawful abortions and a healthcare system that relies on the availability of the drug under the current conditions of use.”

She said the “unprecedented decision” would also “threaten to severely disrupt the pharmaceutical industry and prevent FDA from fulfilling its statutory responsibilities according to its scientific judgment.

Jessica L. Ellsworth, a lawyer for Danco Laboratories, a manufacturer of the drug and an intervenor in the case, told the justices in court papers that “for the women and teenage girls, health care providers and States that depend on FDA’s actions to ensure safe and effective reproductive health care is available, this case matters tremendously.”

She said the court should take up the dispute because it “affects the availability of a drug with lawful uses in States across the country” and “raises questions about whether a single federal court can limit abortion access in the States that protect it.”

The 5th Circuit decision “destabilizes” the pharmaceutical and biotechnology industries “by questioning when scientific studies – accepted by FDA – are sufficient to support conditions of use,” Ellsworth added.

But critics of the drug downplayed the government’s position and argued that if the justices rule in their favor and restrict the drug, it could still be available.

“Women will still have access to chemical abortion under the same protections that existed for the first 16 years of mifepristone’s use, including crucial examinations and ongoing monitoring for complications by a prescribing physician,” Hawley said in court papers.

Hawley stressed that the lower court ruling wouldn’t necessarily take the drug off the market, but it would restore “common sense safeguards.”

Related: Utah Supreme Court hears arguments to keep abortion trigger law on hold

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Supreme Court to decide whether to restrict abortion drug nationwide