Anti-abortion group launches new pill challenge as SCOTUS mulls sweeping restrictions

The influential anti-abortion group Students for Life on Wednesday launched the next phase of its campaign to use the nation’s environmental laws to restrict the ability to terminate a pregnancy.

In a citizen petition to the FDA — first shared with POLITICO — the group asked that access to the widely used abortion drug mifepristone be prohibited until the agency studies whether trace amounts of the pill in wastewater pose any risk to “endangered or threatened species or designated critical habitats.”

Students for Life argued that the FDA failed to conduct this assessment when they approved the drug in 2000, and the group claimed that the high number of people using the pills to terminate pregnancies at home and flushing fetal remains could be contaminating the environment.

The FDA did not immediately respond to a request for comment.

The petition comes as access to the pills is already under threat.

An order by the U.S. 5th Circuit Court of Appeals would roll back policies the FDA has approved since 2016 to make the pill more accessible — including telemedicine prescription, mail delivery and retail pharmacy dispensing — and shrink the window of time patients are approved by FDA to take the drug from 10 to seven weeks of gestation — before many know they are pregnant.

Part of that ruling turns on what the challengers say is FDA’s failure to respond to a similar citizen petition. The Biden administration appealed that ruling to the Supreme Court and asked for an emergency stay, and the justices could rule as soon as today on whether those restrictions should take hold.

In an interview with POLITICO, attorneys for Students for Life said the challenge pending before the Supreme Court has boosted their efforts.

Zachary Kester, general council for Students for Life, said that if the case against the FDA forces the agency to restart the approval of mifepristone, the group hopes to compel it to conduct wastewater and environmental assessments as part of that process — likely delaying approval significantly.

Kristi Hamrick, the chief policy strategist for Students for Life, argued the two anti-abortion efforts build on one another. As the Supreme Court weighs arguments about how the pills affect the patients who take them and the doctors who treat those patients in the rare event they experience complications, the new petition claims the drugs could affect the broader population as well as animals.

“This is just an additional issue we are raising about the reckless behavior of the FDA,” she said. “We’re expanding the pool of risk.”

Environmental scientists have said there’s no evidence abortion pills have any adverse effect on the environment, arguing that it’s a miniscule fraction of the total volume of pharmaceutical drugs that find their way into wastewater. And abortion-rights groups have blasted Students for Life for using environmental laws as a weapon in its decades-long battle to ban abortion.

Yet the group, whose board includes Federalist Society president Leonard Leo, is confident the strategy could make an impact.

Its members are talking with state and federal lawmakers about model legislation that would require doctors who prescribe the pill to be responsible for disposing of the “medical waste” that results when the fetus is expelled. Such legislation has already been introduced in West Virginia.

The group is also in talks with state attorneys general about bringing legal action under state environmental laws that would restrict the use of the pills. And, should the FDA not respond to their Wednesday petition within the required 180 days, Students for Life plans to sue.

“At the core of the litigation in Texas is that the FDA took years to respond to a citizen petition,” Kester argued. “So we will have some options in court. Any undue delay by the FDA, we can hold them to account.”