The Supreme Court on Tuesday will hear its first abortion case since the 2022 reversal of Roe v. Wade and upheaval of reproductive rights in America.
Consider how much the justices’ decision has changed the country:
Fourteen states now have total bans and seven others have imposed substantial restrictions on access to abortion.
Some states that ban abortion are trying to keep abortion medication from crossing their borders and, separately, are seeking to block a federal law that allows emergency room physicians to terminate a pregnancy if medically necessary.
And an Alabama Supreme Court decision impinging on in vitro fertilization – a method used to produce, not end, pregnancy – was traced by critics, including President Joe Biden, to the Supreme Court’s erosion of a woman’s right to privacy in its overturning of Roe.
On the political front, abortion has catapulted to the top of election-year issues, with Democrats hoping public concern for restrictions continues to help their candidates; Republican presidential candidate Donald Trump has recently floated the idea of a nationwide ban on abortion at 15 weeks of pregnancy.
All the while, public regard for the Supreme Court has degenerated.
Such will be the culturally laden backdrop as the justices on Tuesday take up a controversy over Food and Drug Administration rules for access to the abortion pill mifepristone. A group of anti-abortion physicians has sued the FDA, challenging the agency’s assessment of the drug’s safety and claiming it improperly lifted “critical safeguards” for its use.
The group wants to diminish women’s access to the pill that is part of a two-drug regime to terminate a fetus in the early weeks and that has become the most common way of ending a pregnancy in America. Among the key provisions in dispute is one from 2016 allowing the drug to be used through 10 weeks of pregnancy, rather than seven, and a 2021 change that permits women to obtain their prescription by mail rather than in person.
Since Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe, medication abortion has been responsible for an unexpected surge in abortions. More than 1 million abortions were undertaken in the US last year, the highest rate in more than a decade and a 10% increase from 2020.
The Biden administration, defending the FDA, had avoided referring even once to the Dobbs decision in its written brief in the new case, perhaps to avoid that constitutional flashpoint and to accentuate the broader stakes of federal regulation and expertise.
Instead, it focuses on the drug approval process.
“To the government’s knowledge, this case marks the first time any court has restricted access to an FDA approved drug by second-guessing FDA’s expert judgment about the conditions required to assure that drug’s safe use,” Solicitor General Elizabeth Prelogar told the justices, referring to a federal appellate court’s 2023 decision against the FDA.
Since mifepristone first was approved for market in 2000, more than 5 million American women have used it to end their pregnancies, Prelogar added.
Groups that have filed “friend of the court” briefs, however, invoke Dobbs and what’s happened in America since the Supreme Court dissolved nearly a half-century of abortion rights precedent.
New York, along with 22 states and the District of Columbia backing the FDA, emphasize the overall disruption to reproductive care since Dobbs and say medication abortion via telemedicine “spiked dramatically in the first year after Dobbs.”
On the other side, the Susan B. Anthony Pro-Life America and the United States Conference of Catholic Bishops took a page from the Dobbs opinion to reinforce their arguments against the FDA, referring to a Dobbs’ majority assertion that “Abortion is a unique act.”
“This Court acknowledges that ‘(a)bortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life,’” lawyers for the anti-abortion groups told the justices, citing previous court decisions.
Expect more abortion debates at the Supreme Court, retired Justice Breyer says
The court that will hear the mifepristone case has changed little since June 24, 2022, when it eliminated the constitutional right that had been preserved in the 1973 Roe v. Wade decision.
A few months after the ruling, retired Justice Stephen Breyer was succeeded by Justice Ketanji Brown Jackson, the first Black woman ever to sit on the high court. The succession of those two liberal, Democratic-appointed justices maintained the 6-3 conservative-liberal majority that has been transforming the law in America.
The year after the Dobbs ruling, the justices overturned another landmark, a 1978 decision ending racial affirmative action at colleges and universities.
Meanwhile, Justice Samuel Alito, who wrote the Dobbs opinion, and other justices have cast doubt on elements of other social milestones, including the 2015 Obergefell v. Hodges decision that declared a right to same-sex marriage.
The court divide mirrors political divisions: All six conservatives were appointed by Republican presidents, three of them by Trump, who has bragged about his role in the Dobbs decision; the three remaining liberal justices were appointed by Democrats.
Breyer, one of the Dobbs dissenters, chided the majority in his new book published Tuesday for saying it could put an end to court cases over abortion.
“The Dobbs majority’s hope that legislatures and not courts will decide the abortion question will not be realized. After all, different states will enact different laws and enforce them differently,” Breyer wrote, listing many of the possible issues that could make it to the Supreme Court over the next few years.
“Whether the Constitution assures a woman an abortion needed to save her life, her physical health, or her mental health; whether the Constitution guarantees abortion rights to victims of rape or incest; whether states can forbid sending medical methods of abortion through the mail; whether states can prosecute those in-state persons who aid or abet out-of-state abortions; and other abortion-related questions may well lead to further Court cases, not solely legislative determinations (many of which may also be subject to judicial review),” Breyer wrote.
How the case got to the Supreme Court
Tuesday’s Supreme Court case has spurred planned protests, and the scene in front of the marble columned court may acquire some of the atmosphere of a traditional abortion rights case. Yet FDA v. Alliance for Hippocratic Medicine has a broader valence that could affect regulation and access to all drugs.
Last year, US District Judge Matthew Kacsmaryk sided with the Alliance in its lawsuit against the initial 2000 FDA approval of mifepristone and subsequent regulations that made the drug more available to women.
The 5th US Circuit Court of Appeals reversed Kacsmaryk’s decision related to 2000 approval – finding it untimely - but agreed that the FDA’s loosening of requirements in 2016 and 2021 lacked sufficient justification.
Among the 2016 changes was the increase in gestational age to 10 weeks of pregnancy, a reduction in the requisite number of in-person medical visits, and authorization for non-physician healthcare providers to prescribe the drug. In 2021, the FDA determined that an in-person dispensing requirement was no longer necessary and that a prescription could be obtained by mail.
As it appeals that decision, Justice Department lawyers representing the FDA say changes over the years came after numerous studies and scientific review. Of the 2021 decision to drop the in-person dispending requirement, it said, “The agency concluded, based in part on actual experience during the pandemic, that the requirement was no longer necessary to ensure mifepristone’s safe use.”
As a threshold matter in the case before the high court, the FDA argues that the anti-abortion physicians who do not prescribe mifepristone lack sufficient injury to establish legal “standing” even to bring the case.
The challengers contend, however, that because they undertake some emergency room duties, they would be pressed to care for women who have complications from medication abortion. They said that when restrictions were loosened in 2016 and 2021, the FDA increased the chances for ectopic pregnancies and other dangerous conditions.
“In removing crucial safeguards for the use of abortion drugs,” Erin Hawley, lead lawyer for the Alliance for Hippocratic Medicine, told the court in a filing, “FDA expressly counted on OB/GYN hospitalists and emergency-room doctors … to manage abortion-drug complications. When faced with these emergencies, (the doctors) have no choice but to provide immediate treatment, even though this kind of participation in an elective abortion harms their consciences and injures them in other ways.”
The Department of Justice counters that such hypothetical scenarios “cannot establish an imminent injury,” required for legal standing, and that the challengers “cannot identify even a single case where any of their members has been forced to provide such care.”