Supreme Court unanimously concludes that anti-abortion activists don’t have any standing to challenge access to mifepristone – however the drug will likely be challenged in court

How did this case come to court?

In Food and Drug Administration v. Alliance for Hippocratic MedicineThe plaintiffs argued that the FDA didn’t adequately test the security of mifepristone. They also claimed that the FDA's subsequent changes that made the drug much more widely available were also flawed.

In 2016, the FDA prolonged the timeframe for prescribing mifepristone from the seventh to the tenth week of pregnancy and allowed non-medical health care providers, reminiscent of nurses, to prescribe the pill. Then, in 2021, the duty at hand in personal documents has been lifted and licensed pharmacies are permitted to distribute it.

What does the choice mean?

Based on this opinion, the usage of mifepristone stays legal in states where abortion is just not banned.

From June 2024, medical abortion will likely be greater than 60% of abortions within the USA

In its ruling, the court ruled that the plaintiffs lacked standing. Standing is the legal doctrine that limits the varieties of cases that courts can hear to those through which the parties involved suffered clear and specific harm.

The court explained the standing requirement by quoting the late Justice Antonin Scalia, who explained that plaintiffs must answer:a fundamental query: “What does it have to do with you?”'”

Opinion of Judge Brett Kavanaugh for the Court rejected the plaintiffs’ standing to sue for several reasonsFirst, it was noted that the plaintiffs “do not prescribe or use mifepristone” and that the “FDA has not required the plaintiffs to do or refrain from doing anything.” Thus, they’re “unregulated parties seeking to challenge the FDA's regulation of others.”

The court concluded that, even when nobody had standing to bring an motion on this particular case, the matter may very well be left to “political or democratic processes” through which opponents could express their “concerns and objections”.

Justice Clarence Thomas agreed with the court’s statement and in addition wrote individually to indicate that the doctors weren’t entitled to He also believes that “abortion doctors do not have the authority to enforce the rights of their clients.”

Why is that this opinion necessary?

This case is significant since it is the primary full opinion from the Supreme Court because the Court's 2022 opinion Dobbs v. Jackson – Women’s Health Organizationwhich overturned Roe v. Wade and located that there is no such thing as a federal right to abortion.

The court ruled that the plaintiffs lacked standing but didn’t address the merits of the lawsuit. This signifies that the choice maintains the established order regarding FDA regulation of abortion pills.

However, it can be crucial to emphasise that the opinion didn’t address legal questions on the validity of the FDA regulations or other questions on the FDA's authority, which suggests that many questions remain unanswered. For example, it is just not entirely clear to what extent the FDA regulations override state regulations on the prescription of mifepristone, which Core of some cases in court.

However, the FDA currently allows mifepristone to be distributed through certified pharmacies and prescribed without an in-person doctor's visit; as much as ten weeks of pregnancy; and by non-physician health care professionals, reminiscent of nurses.

Could there be more cases related to abortion pills?

Other cases involving abortion pills are already before lower courts.

First, three states – Idaho, Kansas and Missouri – have showed that they’re able to challenge the FDA's decision-making on mifepristone, so the problems on this case may return to the Supreme Court.

Second, states are already restricting access to the abortion pills. In May 2024, Louisiana decided to treat each mifepristone and misoprostol as controlled substances, meaning that lawmakers concluded – albeit without scientific evidence – that taking the drugs poses risks of dependence and abuse. Both pills are used for purposes apart from medication abortion.

Third, a federal judge in North Carolina recently maintain a number of the state restrictions on medical abortionThese include the requirement of a face-to-face consultation 72 hours before prescribing, and a face-to-face examination and ultrasound scan before prescribing. The judge's reasoning was that these requirements appeared to concern issues “that go beyond the regulation of the safe use of mifepristone”, reminiscent of the regulation of the medical occupation.

On the opposite hand, it repealed the parts of North Carolina's law that prohibited patients from obtaining the pills through pharmacies and taking them at home. It also blocked the requirement for an in-person follow-up appointment, which it saw as contradicting the FDA's decision to repeal those requirements.

Fourth, the FDA could resolve under a Trump administration to return to the old requirements for prescribing mifepristone. This could be a “highly unusual” approach, but nothing excludes this possibility. Moreover, it’s a method expressly beneficial by anti-abortion activists.

Finally, there’s the query of the meaning and application of a Victorian law from 1873, the Comstock Lawwhich criminalizes shipping or shipping of “offensive, lascivious, indecent, filthy or vile articles” and of anything “advertised or described in a manner that… causes an abortion.” Abortion opponents consider this is applicable to mifepristone.

The Justice Department under the Biden administration interpreted the law as only applying if the sender knows that the recipient wants to make use of the pills “illegally” for an abortion. one other Government, the Ministry of Justice could Consider the broader scope of the Comstock Act..

As we mentioned, a broad interpretation of the law could transcend banning the mailing of the pills even when abortion is legal; it could also apply to the distribution of any medication or medical device – apart from mifepristone – used to perform an abortion. The same devices are also used for other varieties of obstetric and gynecological care. This could end in abortion being banned across the country. even where states allow abortion..

The ruling does have short-term consequences: Mifepristone will remain available where it’s legal. But this is just not the last word on the problem of access to medical abortion.