SCOTUS rejects challenge to abortion pill mifepristone

Justice Brett M Kavanaugh

Justice Brett M Kavanaugh

The Supreme Court has rejected a lawsuit challenging the authority of the FDA to regulate the abortion pill mifepristone, in a move that will ensure it can still be provided by mail-order without a doctor visit.

SCOTUS justices ruled unanimously today that the Alliance for Hippocratic Medicine and other parties that brought the suit “lack standing” to bring the legal challenge, as they were unable to demonstrate that the FDA’s actions injured them, and do not have third-party standing to assert the rights of their patients.

It’s a significant setback for an anti-abortion movement that has been doggedly going after the remaining rights of women to access abortions since SCOTUS overturned the constitutional right to abortion in 2022.

“We recognise that many citizens, including the plaintiff doctors here, have sincere concerns about and objections to others using mifepristone and obtaining abortions,” wrote Justice Brett Kavanaugh in his opinion on the case, on behalf of the unanimous court.

“Citizens and doctors do not have standing to sue simply because others are allowed to engage in certain activities – at least without the plaintiffs demonstrating how they would be injured by the government’s alleged under-regulation of others,” he continued.

Last year, a lower court ruling called on the FDA to revoke the two-decades-old license for mifepristone altogether in a suit brought by anti-abortion groups led by the AHM, although that was put on hold by SCOTUS pending appeal.

The appeals court stopped short of removing mifepristone from the market, but wound back measures that had been introduced by the FDA to make it easier to get access to the drug introduced after the right to abortion was ended, including telemedicine prescriptions, mail-order availability, and prescribing by certain healthcare professionals other than a doctor.

The pharma industry has pushed back hard against that decision, backing the US government, which has argued that it could set a dangerous precedent by undermining the FDA’s gatekeeper role on approval decisions for medicines. It has also maintained that would create a situation in which judges could ban drugs based on political and personal views, rather than medical science.

Mifepristone manufacturer Danco Laboratories said it was pleased with the decision, as it maintains “the stability of the FDA drug approval process […] on which patients, healthcare providers, and the US pharmaceutical industry rely [and] safeguards access to a drug that has decades of safe and effective use.”

Meanwhile, the Department of Justice said it was “gratified that today’s unanimous decision in FDA v. Alliance for Hippocratic Medicine ensures that mifepristone remains available for women across the country on the terms approved by the […] FDA.”

Attorney General Merrick Garland pledged that the DoJ “will continue to work tirelessly to protect and advance reproductive freedoms under federal law,” asserting that women who live in states that have blocked access to abortion must remain free to travel to states in which that care is lawful and be able to access mifepristone by mail for lawful purposes.

It may not be the end of the matter, as Justice Kavanaugh – who was appointed by Donald Trump and was part of the majority to overturn the Roe vs Wade legislation that gave women the right to abortion – also wrote in his opinion that “citizens and doctors who object to what the law allows others to do may always take their concerns to the executive and legislative branches and seek greater regulatory or legislative restrictions on certain activities.”