The Mifepristone Case Isn’t the Endgame for Abortion Opponents

The Supreme Court on Tuesday appeared skeptical of arguments in favor of limiting access to mifepristone, a medication approved long ago by the Food and Drug Administration for abortions—at least on the grounds that the plaintiffs, a group of anti-abortion doctors who haven’t actually prescribed the drug, had standing to claim that its availability somehow injured them. Justice Neil Gorsuch mused that the case could be “a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule or any other federal government action.”

This is the first major abortion-related case the Supreme Court has heard since the conservative majority overturned Roe v. Wade in 2022. The FDA approved mifepristone in 2000, but attorneys for the plaintiffs—the Alliance for Hippocratic Medicine, which set up shop shortly after Roe was overturned—asked the court to block rules the agency implemented in 2016 and 2021 that made it easier to access the drug, including by mail. (Medication abortion represented 63 percent of all U.S. abortions in 2023, according to data from the Guttmacher Institute, and it’s believed that the rise in abortions since Roe was overturned is largely due to the availability of abortion pills by mail.)

The court will release a decision by early July at the latest, but even if mifepristone survives this ruling, abortion opponents will continue to bring legal challenges against the drug. States that have implemented abortion restrictions “will file copycat lawsuits to try to restrict access to medication abortion in every state in the country,” warned Julia Kaye, a senior staff attorney with the American Civil Liberties Union Reproductive Freedom Project.

During oral arguments on Tuesday, Justices Samuel Alito and Clarence Thomas indicated another potential legal avenue for restricting mifepristone: They frequently mentioned the Comstock Act, a nineteenth-century law that bans sending obscene material and drugs for abortions through the mail. The federal government effectively stopped enforcing the law nearly a century ago, and the courts have narrowed interpretation of the law to apply only to mailing explicitly illegal material. However, as my colleague Melissa Gira Grant wrote last year, abortion opponents have sought to revive the Comstock Act to block abortion medication.

“This case is just one inflection point in an ongoing assault by anti-abortion extremists against all of our freedoms, both from the state and local level to the federal level,” said Mini Timmaraju, the president and CEO of Reproductive Freedom for All, an advocacy group that supports abortion access.

A coalition of conservative groups, led by the Heritage Foundation, has prepared a nearly 1,000-page “playbook” for a potential Republican president in 2025, including plans to restrict abortion. This would include directing the FDA to rescind its approval of mifepristone and stopping “promoting or approving mail-order abortions in violation of long-standing federal laws that prohibit the mailing and interstate carriage of abortion drugs”—a reference to the Comstock Act.

Meanwhile, former President Donald Trump, the presumptive GOP nominee, has mulled supporting either a 16-week or 15-week ban on abortion, with some exceptions. Republicans in Congress have also proposed bills to limit abortion, such as legislation that would roll back the FDA regulations allowing telemedicine prescription and mail delivery of mifepristone and even ban medication abortion altogether. Although efforts to restrict mifepristone tanked an agriculture appropriations bill last year, abortion opponents hope that a Republican in the White House and GOP majorities in both chambers of Congress could strengthen their hand.

On top of the 14 states that have banned abortion outright, 12 other states have passed at least one restriction on telehealth medication abortion. Meanwhile, blue states have begun adopting “shield laws” to protect doctors from prosecution should they prescribe abortion medication for out-of-state patients. Progressive groups have also championed state ballot initiatives to protect the right to an abortion in red states.

“We are in the states fighting around these ballot initiatives and fighting for governors, and A.G.s, and state legislatures that will uphold reproductive freedom,” said Timmaraju.

Vibe check: The scene outside of the Supreme Court

Each week, I provide an update on the vibes surrounding a particular policy or political development. This week: The scene on the ground at the Supreme Court on Tuesday.

The scene outside the Supreme Court on Tuesday morning was a familiar one, as anti-abortion and pro-Roe demonstrators held competing rallies. There were signs calling abortion a “human right” and signs declaring, “Abortion pills are murder”; anti-abortion rallygoers lying on the ground in protest and abortion supporters in Planned Parenthood pink dancing as Beyoncé’s “Cuff It” thumped from massive loudspeakers.

Shanay Watson-Whittaker, the director for Michigan campaigns at Reproductive Freedom for All, had traveled from her home state. Bedecked in the organization’s signature deep purple, Watson-Whittaker spoke of her six children in their mid-twenties. “This is about their future. It’s up to them what they want to do with their bodies, and I want to make sure that the government does not interfere with that,” she said. “I’m here to make my voice heard for them and their future.”

Inside the courthouse, most justices appeared skeptical about whether the anti-abortion doctors could prove concrete harm from mifepristone. Kaye argued that the case “should have been laughed out of court from the start,” adding, “We are certainly hoping that the justices will recognize that anti-abortion groups’ arguments in this case defied bedrock legal principles and are not based on a shred of credible evidence.”

But Kristen Day, the executive director of Democrats for Life, argued that “this is about providing medication to women without a doctor.”

“As Democrats, we support regulation. We support regulation in every avenue. And for some reason we’ve carved out abortion as, ‘Let’s give this to women without regulations and health and safety standards,’” Day said outside the court, as she waited to speak before the crowd of abortion opponents. (As the American College of Obstetricians and Gynecologists noted in an amicus brief in this case, “Serious side effects occur in less than 1% of patients, and major adverse events—significant infection, blood loss, or hospitalization—occur in less than 0.3% of patients.”)

While mifepristone can be prescribed by a doctor or obtained through a clinic, including via telehealth, a patient’s ability to access it may depend on how strictly their state has restricted abortion; the legality of using mifepristone in a state where abortion is banned is murky.

In April, the Supreme Court is expected to hear oral arguments in a case relating to a federal law allowing emergency access to abortion procedures. One thing is all but certain: When the court next convenes to consider a case relating to abortion rights, there will be protesters jostling outside, shouting to have their voices heard.

What I’m reading

Can this forgotten anti-poverty program be saved? by Grace Segers in The New Republic
Can a tribe’s religious freedom claims halt a major copper mine? by Taylar Dawn Stagner in Mother Jones
‘The whole bridge just fell down.’ The final minutes before the Key Bridge collapsed, by Lee O. Sanderlin and Adam Willis in The Baltimore Banner
In a secret game of prisoner swaps, Putin has held most of the cards, by Aruna Viswanatha, Bojan Pancevski, Drew Hinshaw, and Joe Parkinson in The Wall Street Journal
Living abroad, Jim McDermott finds his liberal utopia, by Ariel Cohen in Roll Call
Why some LGBTQ+ groups oppose the current Kids Online Safety Act, by Jasmine Mithani in The 19th
How Kate Cox became a reluctant face of the abortion rights movement, by Charlotte Alter in Time

Pet of the week

Want to have your pet included at the bottom of the next newsletter? Email me: gsegers@tnr.com.

This week’s featured pet was submitted by Tom Grafton. Hank is pictured after a long day at the dog park.