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Supreme Court Sets March Date for Arguments on Abortion Drug Mifepristone

“Restricting access to mifepristone impedes patient autonomy,” a physicians’ group said in defending current standards.

Abortion rights activists rally outside the Supreme Court in Washington, D.C., on April 15, 2023.

The U.S. Supreme Court announced on Monday that it will hear oral arguments about the legality of the approval process for abortion medication this spring.

The medication mifepristone was approved by the Food and Drug Administration in 2000. In April 2023, a conservative federal judge in Texas sided with plaintiffs who said the drug was improperly approved, even though it took several years of scrutiny before it was made available. Those same plaintiffs, citing dubious studies and flawed statistics, then questioned the safety of the drug, despite evidence and several years of prescribing mifepristone demonstrating that it is safe.

The Supreme Court at that time intervened, responding to this and another conflicting ruling by a separate federal judge in Washington state who said the approval process had been proper. While the matter continues to be litigated in the courts, the Supreme Court said, mifepristone would remain available to those receiving a prescription for it, through in-person or telemedicine means.

A Fifth Circuit Court ruling on the drug, responding to the Texas judge’s ruling, held that FDA approval from 2000 couldn’t be rescinded, but stipulated that guidelines for the use of mifepristone had to revert back to what they were in 2016. The Supreme Court announced in December that it would review that ruling. On Monday, the Supreme Court stated that oral arguments in the case would begin on March 26.

During the pandemic, federal rules for the drug were relaxed to allow providers to prescribe the drug virtually, and for patients to receive it through the mail to administer it themselves. If those standards revert to the 2016-era guidelines, patients would no longer be able to get the drug through telemedicine and the mail. It would also reduce the timeframe that patients would be allowed to use mifepristone, from 10 weeks down to seven weeks of pregnancy.

The Supreme Court stated on Monday that oral arguments in the case would begin on March 26.

The Department of Justice (DOJ) is defending keeping mifepristone access at its current standard. Reverting back to the way things were in 2016 “threatens profound harms to the government, the healthcare system, patients and the public,” the department said in a legal brief to the Supreme Court.

The hearing will take place less than two years after the Court dismantled federal abortion protections that had existed in Roe v. Wade. The final judgment in the case will be published around the same time as the two-year anniversary of that ruling. The case is the first major abortion case that the Supreme Court has agreed to hear since that time.

“Let’s be clear what this case is about – it’s about banning access to the most common method of abortion that people increasingly rely on for care,” said Nourbese Flint, President of All* Above All, a pro-abortion access organization, in a statement to Truthout. “For people working to make ends meet, young people, and people who live in rural areas, being able to get medication abortion via telehealth can be the difference between getting essential care or going without. As anti-abortion politicians and judges insert politics into people’s health and wellbeing, we’re committed to centering those who bear the brunt of their antics.”

Several pro-abortion groups have filed amicus briefs to the Court encouraging justices to reject the Fifth Circuit Court’s calls to revert to the 2016 standards.

“If the Court affirms [the Fifth Circuit Court’s ruling], the upshot will be harm all around: harm to women, particularly rural and low-income women, who will be required to visit in-person clinics simply to take a prescription medication, or may not be able to access mifepristone for abortion or miscarriage management at all; harm to providers, clinics, and health systems, who will be overwhelmed with demand; harm to Governors, whose critical tools to safeguard public health will be unnecessarily curbed; and harm to the public fisc, which will bear the brunt of many of the economic costs of the decision,” read a brief from the Reproductive Freedom Alliance, a coalition of 22 governors who support protecting abortion rights.

“By limiting access to mifepristone, the rulings of the lower courts would jeopardize patient health rather than protect it. … Restricting access to mifepristone impedes patient autonomy and places providers in untenable positions,” Physicians for Reproductive Health, a group of medical providers who advocate for expanded access to reproductive health care, said in its brief.

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