Supreme Court justices Tuesday strongly signaled they would not halt access to the medication mifepristone that is used in more than 60% of abortions.
Alliance for Hippocratic Medicine (AHM) v. Food and Drug Administration (FDA) is a lawsuit against the FDA that seeks to overturn the federal agency’s approval of mifepristone and effectively institute a nationwide ban on the drug, which is used along with misoprostol in a majority of medication abortions. When first bringing the lawsuit in November 2022, AHM sought out an anti-abortion, Trump-appointed judge in Texas, who effectively instituted a nationwide ban on the abortion pill last year. However, the Biden administration and the drug’s manufacturer Danco Laboratories appealed to the Supreme Court, and more than 100 medical and public health experts and reproductive rights, health, and justice organizations filed amicus briefs in support of the FDA’s approval of the drug. As the case proceeds, mifepristone remains available nationwide.
During oral arguments Tuesday, the justices seemed more concerned with whether the anti-abortion doctors and organizations behind the lawsuit have legal standing to challenge the dispensing rules set by the FDA more than 20 years ago, and not the false claim at the center of the case alleging that mifepristone is unsafe. The plaintiffs in the case claim the FDA did not have the authority to approve mifepristone for sale, and that the federal agency failed to adequately consider the drug’s safety and effectiveness. The medication, which is approved in over 90 countries, has a 95% effective rate and has held a consistent safety record for decades.
Studies used to justify rolling back mifepristone access relied on junk science. The publisher eventually retracted them due to unreliable findings, discredited experts, and undisclosed conflicts of interest by researcher James Studnicki, who is vice president of the anti-abortion Charlotte Lozier Institute that purports to be the “research and education” arm of Susan B. Anthony Pro-Life America.
Abortion rights organizations like Plan C have also expressed concern that briefs in Alliance for Hippocratic Medicine v. FDA cite the 1873 Comstock Act as a way to potentially eliminate access to abortion. For 151 years, the Victorian-era obscenity law to “suppress vice” has shaped how gender and sexuality are criminalized in the U.S. In recent years, the law has made a comeback as conservatives attempt further bans on abortion access.
During oral arguments, Justices Samuel Alito and Clarence Thomas repeatedly invoked the Comstock Act when pressing attorneys in the case about whether the federal law should apply to abortion drugs sent through the mail. As a result, Rep. Cori Bush called for a repeal of the Comstock Act, potentially making her the first elected lawmaker to do so, according to Jezebel’s Susan Rinkunas.
On X (formerly Twitter), Bush referred to the Comstock Act as a “zombie statute” and “dead law.”
“The anti-abortion movement wants to weaponize the Comstock Act as a quick route to a nationwide medication abortion ban,” Bush wrote. “Not on our watch.”
Alliance for Hippocratic Medicine v. FDA is a brazen attempt to undermine both the FDA’s authority and patient safety by disrupting abortion care nationwide. In 2023, the federal agency implemented a permanent change that eliminated in-person dispensing requirements for mifepristone, making the abortion medication more accessible through telehealth and certified pharmacies.
Medication abortion has become critical for patients in need of care since the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization that overturned the constitutional right to abortion. Despite abortion bans in more than a dozen states, the reproductive rights research organization Guttmacher Institute reports that abortion numbers are at their highest in more than a decade. According to Guttmacher, the use of telehealth to provide medication abortion “accounts for a substantial portion of abortion provision in states without abortion bans.” A new peer-reviewed study published in JAMA this week, co-written by Plan C co-founder Elisa Wells, includes for the first time the number of abortion pills distributed through alternate networks, finding that self-managed abortions rose by more than 26,000 in the six months after the Supreme Court overturned Roe v. Wade.
As courts and lawmakers continue efforts to further erode access to abortion care, Plan C urged the media to “separate the concepts of access from legality” in part, by reporting on safe and effective alternative routes for self-managed abortion, including community support networks and international telehealth services.
“[I]t is becoming clearer with every passing hearing and decision the American government is not here to protect bodily autonomy,” Wells said in a statement. “We expect abortion-seekers to increasingly move forward with alternative routes of access, which we know are readily available and medically safe. While an unfavorable SCOTUS decision will cause chaos, fear, and harm, we do expect that alternate access to abortion pills will remain available in all 50 states.”
It appears likely the Supreme Court will allow mifepristone to remain available, with a decision in the case expected this summer.
Renee Bracey Sherman, founder and co-executive director of the abortion storytelling organization We Testify, noted that no matter how the “chaotic legal drama” unfolds, one thing is clear:
“Mifepristone is already available in our communities, and people are self-managing their abortions with it,” Bracey Sherman said in a statement. “This is what we’ve been doing, and we will keep doing because we do not receive our healthcare from the court.”
