The US Supreme Court will hear a challenge to a long-standing approval of a widely used abortion drug, the first major abortion case to reach the nation’s highest court after it struck down Roe v Wade last summer.
Mifepristone, one of two drugs in a two-drug protocol for medication abortion, was approved for use by the US Food and Drug Administration more than two decades ago. But a lawsuit filed by an influential right-wing legal group and anti-abortion activists has sought to revoke that approval as part of a years-long campaign to outlaw abortion nationwide.
A ruling to strike down the federal government’s approval of the drug could drastically impact access to abortion and miscarriage care for millions of Americans across the country, including in states where it is legally protected.
Last year, the court’s conservative supermajority revoked a constitutional right to abortion care in a landmark decision in Dobbs v Jackson Women’s Health Organization, a ruling that reversed the decades-old precedent established by Roe v Wade.
In the months that followed, more than a dozen states effectively outlawed abortion care altogether, or implemented severe restrictions that have complicated access to abortion for millions of Americans. All of those states have separate laws targeting medication abortion, and at least 15 other states restrict access to the procedure.
“Across the country, we’ve seen unprecedented attacks on women’s freedom to make their own health decisions,” White House press secretary Karine Jean-Pierre said in a statement on Wednesday.
“States have imposed extreme and dangerous abortion bans that put the health of women in jeopardy and that threaten to criminalize doctors for providing the health care that their patients need and that they are trained to provide. No woman should be unable to access the health care that she needs. This should not happen in America, period,” she added.
The administration will “continue to stand by” the FDA’s approval process, she said.
Mifepristone was first approved for use by the FDA in most cases up to 10 weeks of pregnancy in 2000. A vast majority of abortions occur within the first nine weeks of pregnancy. From 2019 through 2020, nearly 93 per cent of all abortions were performed before the 13th week, according to the US Centers for Disease Control and Prevention.
More than half of all abortions in the US are medication abortions, according to the Guttmacher Institute.
Nancy Northup, president of the Center for Reproductive Rights, which has litigated abortion rights cases across the US in the aftermth of the Dobbs decision, said the Supreme Court “did the right thing” by agreeing to hear the case.
The stakes are “enormous,” she said in a statement on Wednesday.
“Even those living in states with strong protections for abortion rights could have their ability to access mifepristone severely restricted if the court rules against the FDA,” she said.
“Let’s be clear,” ACLU Reproductive Freedom Project director Jennifer Dalven said in a statement. “This case is the next step in the extremists’ plan to prevent anyone in the country from being able to get an abortion no matter where they live.”
Last year, the right-wing legal group Alliance Defending Freedom filed a lawsuit in US District Court in Amarillo, Texas on behalf of a group of anti-abortion activists that incorporated in Amarillo as the Alliance for Hippocratic Medicine within the same month the complaint was filed.
The Alliance Defending Freedom also led the challenge at the Supreme Court that ultimately struck down Roe v Wade.
Earlier this year, US District Judge Matthew Kacsmaryk – a former right-wing activist lawyer who was appointed to the federal judiciary by Donald Trump – issued a ruling to suspend the FDA’s approval of mifepristone. His order was set to take effect a week later, pending a decision from on appeal.
Abortion rights advocates, providers, major medical groups and legal analysts condemned the ruling, and the US Department of Justice and Danco Laboratories, which manufactures mifepristone, filed an appeal, which landed at the right-wing Fifth Circuit, which has jurisdiction over the Amarillo court.
In August, the panel partially upheld the judge’s ruling, which will not go into effect until the nation’s highest court weighs in.
Alliance Defending Freedom’s senior counsel Erin Hawley, wife of US Senator Josh Hawley, has urged the Supreme Court to overturn the FDA’s approval, claiming that it “does not reflect scientific judgment but rather a politically driven decision to push a dangerous drug regimen.”
Abortion rights advocates and providers have warned that eliminating or restricting access to mifepristone could drastically impact an already-fragile landscape for abortion care.
Vice President Kamala Harris has warned that the lawsuit is “a threat to a woman’s freedom to make decisions about her own body and another step towards the ultimate goal of a nationwide abortion ban.”
A ruling that undermines the FDA’s drug approval process could also open the door for other activist-driven legal battles over other drugs, potentially inviting other destabilising lawsuits to Covid-19 vaccines, contraception, HIV medication, gender-affirming care, and other life-saving drugs.
