The US Supreme Court on Thursday unanimously struck down a bid by pro-life advocates to restrict the availability of abortion drug Mifepristone.
Reproductive rights laws have shifted wildly in the two years since the US Supreme Court decided to overturn Roe v. Wade, the 1973 decision that held abortion was a constitutionally enshrined right. In its 2022 decision — Dobbs v. Jackson Women’s Health Organization — the court held abortion was neither explicitly nor implicitly dealt with in the Constitution, and determined that state voters and legislatures should decide questions of reproductive rights policy.
Since then, a flurry of legislative activity has led to total bans on abortion in 14 states, and bans based on gestational duration in 27, according to sexual and reproductive rights organization the Guttmacher Institute.
It was against this backdrop in November 2022 that a coalition of pro-life and Christian medical organizations filed a lawsuit claiming that the Food and Drug Administration (FDA) had failed to protect “America’s women and girls when it chose politics over science and approved chemical abortion drugs for use in the United States.” In particular, the case centered on Mifepristone — a drug that can terminate a pregnancy through 10 weeks of gestation by blocking progesterone.
The plaintiffs had argued the FDA exceeded its authority and failed to adequately consider the pill’s safety risks when approving it in 2000 under accelerated regulations for drugs meant to treat “serious or life-threatening illnesses.” It sought to pull mifepristone from the US market entirely or curtail its use.
But in its unanimous decision Thursday, authored by Justice Brett Kavanaugh, the court found the group lacked standing to challenge the drug:
The plaintiffs have failed to demonstrate that FDA’s relaxed regulatory requirements likely would cause them to suffer an injury in fact. For that reason, the federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions.
The court explained that the concept of “standing,” as enshrined by Article III of the US Constitution, exists in part to weed out “plaintiffs who might have only a general legal, moral, ideological, or policy objection to a particular government action.”
Plaintiffs are pro-life, oppose elective abortion, and have sincere legal, moral, ideological, and policy objections to mifepristone being prescribed and used by others. Because plaintiffs do not prescribe or use mifepristone, plaintiffs are unregulated parties who seek to challenge FDA’s regulation of others. Plaintiffs advance several complicated causation theories to connect FDA’s actions to the plaintiffs’ alleged injuries in fact. None of these theories suffices to establish Article III standing.
The decision averts what would have been a seismic shift in abortion access nationwide; at present, medication abortion accounts for more than 63% of abortions across the US, an increase from 53% in 2020, according to a Guttmacher study.
