Supreme Court Weighs in on Legal Battle Over Mifepristone, Protecting Access to Abortion Pill

Pro-choice advocates rallied outside the U.S. Supreme Court on April 15 in wake of the latest legal battle over abortion acess. Source: Emily Stellakis ‘24

The abortion pill used in nearly all medication abortions in the U.S. will remain broadly available, for now, after the U.S. Supreme Court ruled on April 21 to reject restrictions imposed by a lower court.

In their first major abortion decision since overturning Roe v. Wade last summer, the Supreme Court ruled to protect access to the drug while a consequential legal battle over whether to permanently oppose restrictions plays out in federal appeals court. The U.S. 5th Circuit Court of Appeals is scheduled to hear oral arguments in the case on May 17.

The Court’s decision was the latest development in a rapid legal clash over access to mifepristone — a drug which has been on the market in the U.S. for 23 years. A controversial ruling by U.S. District Judge Matthew Kacsmaryk in Texas suspended mifepristone’s long standing Food and Drug Administration approval, putting access to the pill in jeopardy nationwide. 

Dissenting in the decision were Justices Clarence Thomas and Samuel Alito.

President Biden said after the Supreme Court ruling that his administration will continue to defend legal access to abortion medication, while calling on voters to elect pro-choice lawmakers.

“I continue to stand by FDA’s evidence-based approval of mifepristone, and my Administration will continue to defend FDA’s independent, expert authority to review, approve, and regulate a wide range of prescription drugs.” Biden said in a statement. “The stakes could not be higher for women across America. I will continue to fight politically-driven attacks on women’s health. But let’s be clear — the American people must continue to use their vote as their voice, and elect a Congress who will pass a law restoring the protections of Roe v. Wade.”

Future legal access to mifepristone landed at the Supreme Court on April 14, with the Court placing a hold on a lower court ruling curtailing access to the drug amid nationwide uproar. The Department of Justice requested the administrative stay from the Supreme Court earlier that day, asking them to restore full access to the abortion pill after a federal appeals court imposed restrictions on its use. 

In the Biden administration’s emergency appeal to the Supreme Court, U.S. Solicitor General Elizabeth Prelogar said the lower court orders “would upend the regulatory regime for mifepristone, with sweeping consequences for the pharmaceutical industry, women who need access to the drug, and FDA’s ability to implement its statutory authority.” 

A Texas district judge ruled to revoke mifepristone’s FDA approval on April 7. The same day, a federal judge in Washington State issued a contradictory ruling, ordering the FDA to maintain the current availability of mifepristone in the 17 states and DC. 

U.S. District Judge Kacsmaryk — a Trump appointee who has written critically about Roe — ruled with anti-abortion rights plaintiffs in Alliance for Hippocratic Medicine v. FDA who allege the approval of mifepristone was flawed and should be voided. 

In response to the dueling court orders, the Biden administration challenged the Texas decision in the Fifth Circuit. On April 12, the court issued a temporary ruling invalidating parts of the Texas ruling but upholding some restrictions on the pill, which could drastically restrict access to the medication even in states where abortion is legal. The Fifth Circuit said the pill can remain on the market but under limited conditions that prohibit its use beyond seven weeks of pregnancy and bar its distribution by mail. Previously, the drug was approved for up to 10 weeks.

Mifepristone, used in combination with another drug called misoprostol, is the most common method to terminate a pregnancy in the U.S., accounting for about half of all abortions. Medication abortions have taken on added importance in the post-Roe era, since the pills can be sent through mail or taken at home.

An abundance of data shows the medicine is both safe and effective, with rates of patient deaths due to mifepristone reportedly lower than they are for Tylenol, penicillin or Viagra. More than 5 million women in the U.S. have used mifepristone to terminate a pregnancy.

The orders — the latest in a string of aftershocks after the Supreme Court’s decision overturning Roe — have sparked outcry from medical professionals, Democrats and the public, who support access to abortion medicine by overwhelming margins. 

As reported by Politico, 72% of Americans oppose “laws that make it illegal to use or receive through the mail FDA-approved drugs for a medical abortion,” according to extensive recent polling on abortion from the Public Religion Research Institute.

In an amicus brief filed by a group of 240 Democratic members of Congress to the Fifth Circuit, lawmakers called the Texas district court ruling “misguided,” with potentially perilous implications. They said the consequences of the district court’s remedy could reach far beyond mifepristone, as it “undermines the science-based, expert-driven process that Congress designed for determining whether drugs are safe and effective.” 

“Just as Dobbs upended abortion access and led to chaos following the decision, eliminating access to mifepristone will further narrow options for care,” the Democrats’ brief stated.

New York has joined other Democratic-led states in stockpiling abortion pills amid uncertainty about its future availability. On April 1, Governor Kathy Hochul announced the state will stockpile 150,000 doses of misoprostol — a five-year supply of the drug, which can be taken on its own to induce abortions — in order to meet anticipated needs. Hochul also said that if mifepristone is taken off the market, the State will commit up to an additional $20 million to providers to support access to other methods of abortion care.

"We will be that beacon of hope, that guiding light to bring others to our state when necessary but I want to let the women of this state know, as long as I'm the Governor of the state of New York, your rights are protected here," Hochul said at a press conference on April 14, alongside Attorney General Letitia James, Senator Kirsten Gillibrand and State Senate Majority Leader Andrea Stewart-Cousins.

“Women across this nation are sick and tired of being treated as though we have no rights,” she added