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SCOTUS Blocks Mifepristone Challenge, Keeping Abortion Medication Legal for Now

The high court ruled that the challengers to the FDA approval of mifepristone lacked standing to make their case.

A view of the U.S. Supreme Court in Washington, D.C., on June 13, 2024.

In a unanimous decision on Thursday, the U.S. Supreme Court rejected a challenge to the widely used abortion medication mifepristone, ruling to continue to allow the pills to be mailed to patients without an in-person doctor’s visit.

The case had been introduced by anti-abortion organizations and right-wing doctors who had questioned the drug’s overall efficiency on dubious grounds. The plaintiffs had also attempted to argue that mifepristone — which was approved by the Food and Drug Administration (FDA) for safe use two decades ago — went through an authorization process that ignored safety protocols, citing unscientific “research” that included musings from anonymous internet blogging sites in their arguments.

Numerous studies have demonstrated that mifepristone is safe and effective, and leading medical organizations and health experts have noted that the drug is safer than a number of common over-the-counter medications, including Tylenol.

More than half of all abortions now involve use of abortion medication, which can be safely administered in a person’s own home. Mifepristone is allowed to be prescribed to people seeking to terminate a pregnancy at the 10-week mark or earlier. The drug is also prescribed to patients who have unviable pregnancies, and can assist people who have had miscarriages.

In a rare 9-0 decision from the high court, the justices held that the groups seeking to ban mifepristone lacked legal standing, the standard that requires those challenging a rule or law to be affected by it.

On the doctors’ claims to legal standing, Justice Brett Kavanaugh, who authored the ruling, recognized the “sincere concerns about and objections to others using mifepristone and obtaining abortions.”

“But citizens and doctors do not have standing to sue simply because others are allowed to engage in certain activities — at least without the plaintiffs demonstrating how they would be injured by the government’s alleged under-regulation of others,” Kavanaugh pointed out.

By “invent[ing] a new doctrine” of standing, the Court would lead the judiciary down an “uncharted path” that would allow “virtually every citizen…to challenge virtually every government action that they do not like,” Kavanaugh warned.

Regarding medical associations’ standing, Kavanaugh again rejected arguments that were presented before the justices in oral arguments earlier this year.

The conservative groups had claimed that the FDA’s approval of mifepristone had “caused” them to conduct their own research studies, which wasted their time and resources.

“But an organization that has not suffered a concrete injury caused by a defendant’s action cannot spend its way into standing simply by expending money to gather information and advocate against the defendant’s action,” Kavanaugh stated. “An organization cannot manufacture its own standing in that way.”

Some abortion rights groups lauded the ruling.

“We are pleased that the U.S. Supreme Court made the right decision to toss this case. Mifepristone is safe, effective, and a crucial part of expanding abortion access in this post-Roe world,” said Kiki Freedman, CEO and co-founder of Hey Jane, a virtual clinic that offers telemedicine abortion care.

However, abortion rights advocates also warned that the ruling did not set precedent protecting the drug — it merely disallowed challenges to mifepristone based on standing, and would likely result in other challenges in the near future.

“The fight to protect medication abortion is not over,” said Adam Cohen, vice chair for Lawyers for Good Government. “Lack of standing is a procedural issue. So the Supreme Court ruling to keep letting women use Mifepristone didn’t address the merits of the case, and multiple Republican states will likely file new challenges to ban the drug.”

“Don’t fall for the banana in the tailpipe. The Court kicked the can down the road until better plaintiffs were before them,” Imani Gandy, editor-at-large for Rewire News Group, said on social media after the ruling.

Julie F. Kay, executive director of the Abortion Coalition for Telemedicine, a nationwide organization that seeks to advance telemedicine abortion access across the country, wrote in a press release:

We’re pleased the Supreme Court has finally shown regard for basic legal principles. While mifepristone remains available through telemedicine care, now is not the time to let our guard down. We continue to see relentless attacks from anti-abortion extremists and the Court has shown no real effort to stop them.

Andrew Weissmann, a former Assistant United States Attorney and current law professor at NYU, said that right-wing justices’ decision to block challenges to mifepristone may have been politically motivated, suggesting that the ruling sought to strategically limit the role of abortion and reproductive issues in the 2024 elections.

“A cynical person might think that the conservative Justices (who routinely ignore ‘standing’ doctrine when it suits them) did this to keep the entire issue of reproductive rights out of the election cycle (where vast majority reject what they are doing), so they can take a hatchet to them after November,” Weissmann wrote on X.

Indeed, this case is apparently the first time that one conservative bloc member of the court, Justice Alito, has rejected standing from a conservative group he would typically align himself with.

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