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Supreme Court Decides to Take Up Abortion Pill Case

Rebecca Downs
Rebecca Downs  |  December 13, 2023 12:30 PM

On Wednesday, the U.S. Supreme Court announced that it would take a case involving the availability of the abortion-inducing drug known as mifepristone. U.S. District Court Judge Matthew Kacsmaryk ruled in April that the Food and Drug Administration's (FDA) approval of mifepristone was done improperly and had to be suspended. The case went through several appeals, with the the U.S. Fifth Circuit Court of Appeals ruling in August that mifepristone can remain on the market, with restrictions. That decision was on hold, though, because the Supreme Court had not yet decided whether to fully consider the matter. Until now.

The Court has agreed to hear the cases brought by the Department of Justice (DOJ) and Danco Laboratories, which distributes the drug, consolidating them into one case. The case will be heard this term, which means we'll see another abortion case this upcoming year, likely in June. The Court declined to hear a case brought by the Alliance for Hippocratic Medicine, though.

In May of last year someone had leaked the draft opinion of the Dobbs v. Jackson case, which was used to overturn Roe v. Wade, with the decision ultimately being handed down in June of last year.

As The Hill explained about the case:

The group of anti-abortion providers that brought the suit, represented by Alliance Defending Freedom (ADF), a conservative Christian legal powerhouse, urged the high court to stay out the case.

But the ADF told the justices that if they did hear the appeals from the Justice Department and Danco, they should review the entirety of the earlier ruling — including whether mifepristone should remain on the market at all.

“FDA’s early actions in approving mifepristone are inextricably intertwined with its more recent decisions to remove critical safeguards surrounding its use,” the group wrote. “To review one without the other is like reading a novel starting in the middle.” 

The Supreme Court’s orders reject that request, agreeing only to weigh in on the changes made after 2016 that eased access. Those changes included allowing the drugs to be sent by mail, and extending the window in which mifepristone can be used to terminate pregnancies from seven weeks’ gestation to 10 weeks.

When The Hill talks about "changes made after 2016 that eased access," there's more to it The Fifth Circuit had ruled 3-0 that changes made in 2016, which significantly de-regulated the drug, did not follow proper procedure.

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In addition to expanding the approved timeline from 7-weeks of pregnancy to 10-weeks, in-person office visits were also reduced to just one visit, non-doctors were allowed to prescribe and administer mifepristone, and the reporting of nonfatal adverse events was eliminated.

Even before 2016, the method had many adverse effects. The Charlotte Lozier Institute (CLI), the research and education institute of SBA Pro-Life America, released a peer reviewed journal in November of 2021 showing that emergency room visits went up 507 percent between 2002 and 2015 following this method, and that 60 percent of visits were incorrectly attributed to miscarriages. 

The method, known as chemical abortion, is particularly common, and explained a rise in abortions when it comes to data from 2019, a possible rise for 2020, as well as a rise in 2021. According to the Centers for Disease Control (CDC), 53 percent of all abortions used this method. "In 2021, 53.0% of all abortions were early medication abortions. Use of early medication abortion increased 3% from 2020 to 2021 and 137% from 2012 to 2021," the findings released in November noted.

Common though the method may be, it's also dangerous, as chemical abortion carries with it four times the complications of surgical abortions. Side effects and risks associated include abdominal pain, nausea, vomiting, diarrhea, weakness, fever/chills, and headaches. The bleeding may last for weeks. Some studies have found 10 percent of women face incomplete abortions at 9-weeks gestation. This can lead to death from infection if the remaining fetal parts or tissue are not properly removed.

Alliance Defending Freedom (ADF) released a statement on Wednesday from Senior Counsel Erin Hawley, vice president of the Center for Life and Regulatory Practice. 

"Every court so far has agreed that the FDA acted unlawfully in removing common-sense safeguards for women and authorizing dangerous mail-order abortions. We urge the Supreme Court to do the same. The FDA has harmed the health of women and undermined the rule of law by illegally removing every meaningful safeguard from the chemical abortion drug regimen," she said. "Like any federal agency, the FDA must rationally explain its decisions. Yet its removal of common-sense safeguards—like a doctor’s visit before women are prescribed chemical abortion drugs—does not reflect scientific judgment but rather a politically driven decision to push a dangerous drug regimen."

The ADF has also made the following points:

  • Every court so far has agreed that the FDA acted unlawfully in removing common-sense safeguards for women and authorizing dangerous mail-order abortions. We urge the Supreme Court to do the same.
  • The FDA’s removal of safeguards—like a doctor’s visit before women are prescribed chemical abortion drugs—does not reflect scientific judgment but rather a politically driven decision to push a dangerous drug regimen.
  • The FDA has harmed the health of women and undermined the rule of law by illegally removing every meaningful precaution from the chemical abortion drug regimen. Like any federal agency, the FDA must rationally explain its decisions.
  • Curbing the availability of Mifepristone is also a critical next step in building up and maintaining the culture of life that the Court ruled in favor of when they overturned Roe. 

In addition to releasing statements calling to mind the dangers of the method and calling out the FDA, SBA Pro-Life America and CLI a press release spoke to polling from CRC Research showing that Americans do not believe that mail-order abortion-inducing drugs are actually safe, as the FDA and Biden administration claims. 

Speaking of the Biden administration, White House Press Secretary Karine Jean-Pierre released a statement of her own on Wednesday, making all sorts of claims about the safety of the method, also warning "we’ve seen unprecedented attacks on women’s freedom to make their own health decisions."

"The Supreme Court has agreed to review the Fifth Circuit’s decision on mifepristone, which threatens to undermine the FDA’s scientific, independent judgment and would reimpose outdated restrictions on access to safe and effective medication abortion. This Administration will continue to stand by FDA’s independent approval and regulation of mifepristone as safe and effective," her statement also read, going on to promote the pro-abortion priorities of the administration. 

"As the Department of Justice continues defending the FDA’s actions before the Supreme Court, President Biden and Vice President Harris remain firmly committed to defending women’s ability to access reproductive care. We continue to urge Congress to pass a law restoring the protections of Roe v. Wade—the only way to ensure the right to choose for women in every state," her statement continued. 

In reality, the legislation Jean-Pierre is promoting, the Women's Health Protection Act (WHPA), would expand Roe and allow for abortion up until birth for any reason throughout the country without legal limit.