By Ivan Sanchez
During last Tuesday’s oral arguments in FDA v. Alliance for Hippocratic Medicine, the Supreme Court indicated a probable inclination to uphold the availability of mifepristone, a key component in medication abortions, across the United States. The majority of justices seemed poised to dismiss the case challenging the FDA’s expansions of access to the drug in 2016 and 2021 due to concerns about the standing of the challengers – individual doctors and groups opposed to abortion on religious or moral grounds.
This case marks the Court’s first consideration of abortion restrictions since its 2022 decision in Dobbs v. Jackson Women’s Health Organization, which eliminated the constitutional right to abortion. In the wake of that ruling, 21 states enacted laws either banning or significantly limiting access to abortion. Notably, medication abortions now constitute more than half of all abortions performed in the country, and a ruling favoring the challengers would curtail access even in states where abortion remains legal.
The legal battle originated in November 2022 when several doctors and anti-abortion groups in Texas challenged the FDA’s approval of mifepristone in 2000, as well as subsequent expansions of access to the drug. While the U.S. Court of Appeals for the 5th Circuit deemed the challenge to the initial approval untimely, it invalidated the FDA’s 2016 and 2021 decisions, citing flaws in the agency’s decision-making process.
The FDA and Danco, the manufacturer of mifepristone, appealed the 5th Circuit’s ruling to the Supreme Court, which agreed to review the case in December. Pending the resolution of the challenge, the lower court’s ruling remains on hold, allowing mifepristone to remain widely accessible.
Much of Tuesday’s debate centered on the question of standing, with U.S. Solicitor General Elizabeth Prelogar arguing that the challengers had not demonstrated the imminent harm necessary to proceed with the lawsuit. While some conservative justices expressed skepticism about the lack of recourse for potential unlawful FDA actions, others, including Justice Elena Kagan, questioned the challengers’ standing given existing federal conscience exemptions for healthcare providers opposed to abortion.
In a related development, Marilyn Lands flipped Alabama’s State House District 10 in a sign of the political staying power of reproductive rights in a rare purple district. Her victory underscores the electorate’s rejection of draconian abortion restrictions, resonating beyond Alabama as a potential blueprint for Democrats nationwide. As the Supreme Court deliberates, the future landscape of reproductive rights hangs in the balance, with mifepristone’s availability serving as a focal point in the ongoing debate over abortion rights and access in America.
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