The Supreme Court Hears Oral Arguments on Common Abortion Pill Mifepristone

Protesters outside of the Supreme Court on March 26. Photo by Ashley Murray via the Oregon Capital Chronicle.

On March 26, the U.S. Supreme Court heard oral arguments for the case FDA vs. Alliance for Hippocratic Medicine. The ruling on this case, which is expected to come out in June, will be an incredibly significant one for abortion access regardless of state.

The case deals with the FDA’s approval of and updated guidelines on the distribution of mifepristone, a common abortion medication. Mifepristone, taken in conjunction with misoprostol, is generally used to terminate pregnancies after up to 10 weeks of gestation. Medical abortions have become an increasingly common means for abortion since the Dobbs decision, making up 6 in 10 abortions in 2023.   

Mifepristone was first approved by the FDA in 2000 for use after up to 7 weeks of gestation. In 2016, the FDA increased its range to 10 weeks, and in 2020 they eliminated the in-person dispensing requirement as a result of the COVID-19 pandemic. 

In April 2022, a Texas court sided with the Alliance for Hippocratic Medicine in their initial case, essentially overruling the FDA’s approval of mifepristone. A federal appeals court later revised the ruling to restore the original 7-week limit and in-person dispensing requirement rather than revoking access entirely. The restrictions established by the appeals court will not go into effect unless the Supreme Court upholds the lower court’s ruling.

The plaintiffs, a group of doctors represented by conservative Christian legal group Alliance Defending Freedom, argued that the FDA failed to adequately assess the risks of mifepristone. The doctors claim that they face injury because they oppose abortion and could, hypothetically, find themselves forced to help a woman with abortion complications.

Firstly, the safety issue: The Alliance for Hippocratic Medicine cites a 2021 study to back up its efforts to remove mifepristone from the market. The study found an increase in emergency room visits after chemical rather than surgical abortion, though it did not track what complications–if any–caused the visits. The article has since been retracted after an independent review found problems with the authors’ methodology and analysis. 

In terms of medications, mifepristone is incredibly safe and effective. Research has demonstrated that mifepristone has a better safety record than penicillin, Viagra, or even Tylenol.

But most of the oral arguments didn’t revolve around the plaintiffs’ central claim. Instead, even the Supreme Court’s conservative, anti-abortion supermajority struggled to determine how the doctors even had a case. The Alliance for Hippocratic Medicine is relying on a series of hypotheticals: that a woman might have serious complications from a medication abortion with mifepristone, that one of these women might end up in the emergency room, and that they might feel compelled to offer care to these women against their personal moral codes.

“[The physicians] are saying, ‘Because we object to having to be forced to participate in this procedure, we’re seeking an order preventing anyone from having access to these drugs at all,” Justice Ketanji Brown Jackson said. “And I guess I’m just trying to understand how they could possibly be entitled to that given the injury that they have alleged.”

To make matters worse for the plaintiffs, a federal statute already protects physicians from having to provide care that would cause injury on religious or moral grounds. Physicians can file a complaint under the Federal Health Care Provider Conscience Protection Statutes if they feel that they were coerced into performing care that they find objectionable or if they were discriminated against for refusing to do so by a clinic or hospital receiving federal funds. What they can’t do is use such a case—in the hypothetical, no less—to subvert the power of the FDA and essentially turn a civil suit into a nationwide ban on mifepristone. 

“This case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule, or any other federal government action,” Justice Gorsuch said. 

Only justices Clarence Thomas and Samuel Alito appeared sympathetic to the argument that the FDA acted unlawfully. When Solicitor Elizabeth General Prelogar, representing the FDA, said that it would be difficult to imagine who would have the standing to make such a sweeping case, Alito said the following:

“So your argument is that it doesn’t matter if [the] FDA flagrantly violated the law, it didn’t do what it should have done, endangered the health of women, it’s just too bad nobody can sue in court?... There’s no remedy? The American people have no remedy for that?”

That’s not the issue in this case, however. The issue, if the case isn’t dismissed on the grounds of standing, is whether the FDA did violate the law in this case. The allegation that the FDA did not adequately assess mifepristone’s safety appears moot given their thorough review of available data and mifepristone’s track record as a safe and effective medication, and the plaintiffs lack standing to sue. According to NBC, it is unlikely that the Supreme Court will side with the plaintiffs in this case.

This does not mean the fight to protect mifepristone access is over, however. Three Republican-led states have “all but promised” to file similar suits in the near future if this one fails, according to CNN. This means that the issue will likely be back on the docket in the near future—and likely with a better thought out case.

Elizabeth Malone, student organization advisor for Planned Parenthood Generation at UNC-Chapel Hill, spoke on the behalf of the organization: "The fear that many of us at Planned Parenthood had when Roe v Wade was overturned was that other aspects of reproductive freedom would be attacked, and that is what we’re seeing in this case. Restricting mifepristone access would be detrimental to millions of people seeking healthcare across the country. For Generation Action, whose central mission on campus is accessibility, we hope that the Supreme Court will choose to keep mifepristone attainable so that Americans can make their own choices about their reproductive health.”