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Unanimous Supreme Court preserves access to abortion medication

WASHINGTON — The Supreme Court on Thursday unanimously preserved access to a medication that was used in nearly two-thirds of all abortions in the U.S. last year, in the court’s first abortion decision since conservative justices overturned Roe v. Wade two years ago.

The nine justices ruled that abortion opponents lacked the legal right to sue over the federal Food and Drug Administration’s approval of the medication, mifepristone, and the FDA’s subsequent actions to ease access to it. The case had threatened to restrict access to mifepristone across the country, including in states where abortion remains legal.

Abortion is banned at all stages of pregnancy in 14 states, and after about six weeks of pregnancy in three others, often before women realize they’re pregnant.

Justice Brett Kavanaugh, who was part of the majority to overturn Roe, wrote for the court on Thursday that “federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions.”

The opinion underscored the stakes of the 2024 election and the possibility that an FDA commissioner appointed by Republican Donald Trump, if he wins the White House, could consider tightening access to mifepristone, including prohibiting sending it through the mail.

Kavanaugh’s opinion managed to unite a court deeply divided over abortion and many other divisive social issues by employing a minimalist approach that focused solely on the technical legal issue of standing and reached no judgment about the FDA’s actions. Kavanaugh’s seven “pro-life” references to abortion opponents may have been the only language in his opinion that revealed anything of his views on abortion.

While praising the decision, President Joe Biden signaled Democrats will continue to campaign heavily on abortion ahead of the November elections. “It does not change the fact that the right for a woman to get the treatment she needs is imperiled if not impossible in many states,” Biden said in a statement.

Marjorie Dannenfelser, president of SBA Pro-Life America, expressed disappointment with the ruling, but trained her fire on Democrats. “Joe Biden and the Democrats are hell-bent on forcing abortion on demand any time for any reason, including DIY mail-order abortions, on every state in the country,” Dannenfelser said.

About two-thirds of U.S. adults oppose banning the use of mifepristone, or medication abortion, nationwide, according to a KFF poll conducted in February. About one-third would support a nationwide ban.

The high court is separately considering another abortion case, about whether a federal law on emergency treatment at hospitals overrides state abortion bans in rare emergency cases in which a pregnant patient’s health is at serious risk.

More than 6 million people have used mifepristone since 2000. Mifepristone blocks the hormone progesterone and primes the uterus to respond to the contraction-causing effect of a second drug, misoprostol. The two-drug regimen has been used to end a pregnancy through 10 weeks gestation.

Jillian Phillips, of North Brookfield, Massachusetts, took mifepristone after she suffered a miscarriage eight years ago. She eventually passed the remains of her nine-week pregnancy, which she buried in a memorial garden.

“It should have never been something we had to win,” Phillips, a 42-year-old mother of three, said. “These are decisions that should be happening in a medical exam room, not courtrooms.”

Health care providers have said that if mifepristone is no longer available or is too hard to obtain, they would switch to using only misoprostol, which is somewhat less effective in ending pregnancies.

Biden’s administration and drug manufacturers had warned that siding with abortion opponents in this case could undermine the FDA’s drug approval process beyond the abortion context by inviting judges to second-guess the agency’s scientific judgments. The Democratic administration and New York-based Danco Laboratories, which makes mifepristone, argued that the drug is among the safest the FDA has ever approved.

The decision “safeguards access to a drug that has decades of safe and effective use,” Danco spokeswoman Abigail Long said in a statement.

The plaintiffs in the mifepristone case, anti-abortion doctors and their organizations, argued in court papers that the FDA’s decisions in 2016 and 2021 to relax restrictions on getting the drug were unreasonable and “jeopardize women’s health across the nation.”

Kavanaugh acknowledged what he described as the opponents’ “sincere legal, moral, ideological, and policy objections to elective abortion and to FDA’s relaxed regulation of mifepristone.”

Federal laws already protect doctors from having to perform abortions, or give any other treatment that goes against their beliefs, Kavanaugh wrote. “The plaintiffs have not identified any instances where a doctor was required, notwithstanding conscience objections, to perform an abortion or to provide other abortion-related treatment that violated the doctor’s conscience since mifepristone’s 2000 approval,” he wrote.

In the end, Kavanaugh wrote, the anti-abortion doctors went to the wrong forum and should instead direct their energies to persuading lawmakers and regulators to make changes.

Abortion rights advocates mainly breathed a sigh of relief after the decision, but they echoed Biden about the impact of the decision two years ago.

“In the end, this ruling is not a ‘win’ for abortion — it just maintains the status quo, which is a dire public health crisis in which 14 states have criminalized abortion,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement.

The mifepristone case began five months after the Supreme Court overturned Roe. Abortion opponents initially won a sweeping ruling nearly a year ago from U.S. District Judge Matthew Kacsmaryk, a Trump nominee in Texas, which would have revoked the drug’s approval entirely. The 5th U.S. Circuit Court of Appeals left intact the FDA’s initial approval of mifepristone. But it would reverse changes regulators made in 2016 and 2021 that eased some conditions for administering the drug.

The Supreme Court put the appeals court’s modified ruling on hold, then agreed to hear the case, though Justices Samuel Alito, the author of the decision overturning Roe, and Clarence Thomas would have allowed some restrictions to take effect while the case proceeded. But they, too, joined the court’s opinion Thursday.

The push to restrict abortion pills likely won’t stop with the Supreme Court’s ruling, said the lawyer who represented anti-abortion doctors and their organizations in the case.

The decision that the doctors don’t have the legal right to sue leaves open the way for lawsuits from others, including three other states that Kacsmaryk had previously allowed to join the case, said Erin Hawley, an attorney for the group Alliance Defending Freedom.

Hawley said she expects Idaho, Kansas and Missouri to continue the lawsuit originally filed in Texas.

Kansas Attorney General Kris Kobach, a Republican, asserted in a statement that the states have “standing that the doctors did not,” confirming that he will press ahead with the case in Kacsmaryk’s court.

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