Abortion rights advocates say consequences dire if SCOTUS declines to hear pill case

More than a year after the U.S. Supreme Court decided states could set their own abortion laws, including bans, the nation’s highest court now could cut off abortion access in states where abortion is still legal.

The Supreme Court began its new term this week and has yet to announce whether it will hear Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, before the term ends in June 2024. This case was designed by the religious right to overturn the approval of the commonly used abortion drug mifepristone. But whatever the court does — even if it declines to hear the case — will further alter healthcare access in the U.S., reproductive health advocates said on a call to reporters Thursday.

“The restrictions that the Supreme Court could reimpose would drastically reduce access to mifepristone and create barriers that are impossible to overcome for many patients who are seeking abortion care,” said Leah Koenig, data analyst and medication abortion researcher, at the University of California San Francisco’s Advancing New Standards in Reproductive Health.

Alliance Defending Freedom, the Christian right legal powerhouse representing the plaintiffs, has asked the court to fully reverse the approval of mifepristone and/or to remove restrictions that were lifted over the course of two decades, as the drug regimen maintained a high safety and efficacy record. The FDA’s most recent and not fully implemented change was to allow pharmacies to directly dispense the drug to patients. The U.S. Fifth Circuit Court of Appeals in its August ruling granted part of plaintiffs’ requests: Instead of removing approval altogether, the three-judge panel ruled instead to undo changes the FDA had made to the protocol since 2000.

Post-Roe, medication abortion and especially telehealth medication abortion have improved abortion access, especially for people living in states where it is banned or widely unavailable, said Dr. Julie Amaon, a family medicine physician and the medical director for the nonprofit Just the Pill, which launched in 2020 and connects patients with abortion pills via mail or mobile clinic in Colorado, Minnesota, Montana, and Wyoming.

Amaon said demand from patients exploded by 400% after Roe v. Wade was reversed. She said they’ve seen more than 6,000 patients who have traveled from more than 34 different states. But if the Supreme Court upholds the appellate decision, it will effectively re-apply old restrictions and increase mifepristone’s dosage against FDA’s current data-based protocol. The out-dated policy also shortens the gestational age from 10 to 7 weeks, before many know they are pregnant, and requires patients to make three in-clinic appointments. These new barriers would be difficult to overcome, Amaon said.

“This decision will also have far reaching implications on not only those who need access to safe abortion, but also on countless other established medical treatments as politics override science,” Amaon said. “The fear and urgency is palpable in our patients’ voices. They are frustrated with the confusing laws that vary from state to state and sometimes day to day.”

Science and legal experts have said plaintiffs’ arguments that the FDA illegally approved mifepristone and that the drug is dangerous are meritless. One of the primary sources Texas federal Judge Matthew Kacsmaryk cited to decide that a handful of anti-abortion doctors who don’t provide abortions have standing was a study now being investigated by health journal publisher Sage Publishing for allegations that the anti-abortion research team misrepresented its findings. Kacsmaryk has been involved deeply in the religious right legal movement.

Another federal judge favored by the far right, U.S. Judge James Ho, was one of the three judges on the Fifth Circuit appellate panel, who in a separate dissent voted to fully overturn the drug’s approval. He made the roundly criticized argument, based on environmental case law, that plaintiffs might suffer “aesthetic injury from the destruction of unborn life.”

The Fifth Circuit has a growing reputation of having extreme conservative opinions reversed by the Supreme Court. And former FDA attorney Eva Temkin told reporters she is confident that will be the case for Alliance for Hippocratic Medicine v. FDA. Otherwise, she said, the Supreme Court would likely upend current regulatory law.

“The Supreme Court can and should take this case and can and should reverse,” Temkin said. “I do think it is quite clearly a matter of national importance, not only because of the abortion impacts and the patient care impact, which of course can’t really be understated, but also because of the impacts on the drug regulatory environment and the industry and the investment and the way that patients access medicine more broadly. So I do have a lot of confidence.’’

In the event, this case changes the legality of mifepristone, abortion providers have been preparing to switch to a different medication abortion regimen that is still safe but less effective and has more side effects.

Whatever the Supreme Court ultimately does in this case will not be the last word in medication abortion access. But advocates are ready for the continued struggle.

“I think what happens then is a real all out fight about, again, an approved medication that’s been on the market for 20 plus years,”  said Kirsten Moore, director of the Expanding Medication Abortion Access Project. “And they’re just going to take it away from us? That will probably show up in the ballot boxes, in legislative fights.”