SCOTUS Will Make a Final Decision About Abortion Pill Access by This Summer
For decades, abortion pills have been used to end pregnancies in the first trimester, but throughout this year, the two-step process—which involves taking the medications mifepristone and misoprostol—has been under federal scrutiny.
Nearly twenty-four years ago, the FDA approved mifepristone for nationwide use, but in April 2023, two federal judges gave opposing rulings. One district court judge, a conservative in Texas, invalidated the FDA’s ruling of the medication, while another district court judge in Washington state declared the drug should remain available without restrictions as it has been for decades. Then, SCOTUS stepped in. On March 26, 2024, nearly a year later and after a ton of other moving parts, the high court finished hearing oral arguments about the drug. And come summer, it will give a final ruling on the drug's future.
Here’s what you should know about the abortion pill federal rulings, and how they impact abortion pills in general as well as overall abortion access nationwide.
A reminder first: What exactly are abortion pills?
Great question. In 2000, the FDA approved this noninvasive method of abortion that is safe to take at home. In essence, abortion pills are a set of two separate pills: The first, mifepristone, blocks the hormone that allows an embryo to attach to the uterus and grow, and the second, misoprostol, empties the uterus, basically causing a super-heavy period.
Their processes are pretty different (one you take with a sip of water; the other involves letting the medication dissolve either under the tongue or through the vagina), but together, these work to fully terminate a pregnancy that isn’t further along than 11 weeks.
Gotcha. So what are the rulings involving abortion pills?
A lot has gone down, so buckle up. It all mostly started back in April 2023 when Texas-based, Trump-appointed U.S. district court judge Matthew Kacsmaryk ruled that the FDA’s 23-year approval of mifepristone should come to an end.
In his 67-page ruling opinion, Judge Kacsmaryk wrote that part of his reasoning for appealing the FDA’s ruling is that the government organization, he says, didn’t take into account “the intense psychological trauma and post-traumatic stress women often experience from chemical abortion.” Judge Kacsmaryk also used typical anti-choice rhetoric like “abortionist,” “unborn human,” and “chemical abortion.”
In the other case, which was filed just a few hours after Kacsmaryk’s, Washington district court judge Thomas O. Rice ruled the opposite—that the FDA should keep its original approval and the medication should remain legal and available in 17 states plus D.C. after some blue states sued to keep the medication abortion access legal.
Has a final decision been made about mifepristone yet?
No, but it could be here by summer. SCOTUS will make its final decision by either June or July, per CNN. If they do decide to ban mifepristone, the ruling would go into effect across the entire country, regardless of whether abortion is permitted, per CBS News.
Oral arguments were held on March 26, 2024, and the mostly conservative court might be leaning toward keeping mifepristone legal and widely available, according to NBC News, but only time will tell. Considering the court's make up, this is a bit surprising. But based on reports from AP News, the judges were mostly focused on whether there was actually any legal grounds to this lawsuit as opposed to questioning the FDA loosening restrictions on mifepristone.
Justice Amy Coney Barrett, one of the conservative judges who was appointed by President Donald Trump, said that a lot of the anti-abortion arguments sounded more like "conscience objections," and Justice Brett Kavanaugh, who was also given his seat by Trump, made a similar point. "Under federal law, no doctors can be forced against their consciences to perform or assist in an abortion, correct?" he asked.
Up to this point, there were a lot of other happenings. For starters, nearly a year ago on April 12, 2023, the U.S. 5th Circuit Court of Appeals halted part of Kacsmaryk’s request to end mifepristone’s approval, but ultimately, that decision made obtaining the drug harder. Essentially, being able to receive the pill via mail from a telehealth organization—an extremely common and preferred way to get it—was off the table at that time, per CNN. The decision also gave a shorter window for when the drug could be taken, closing the cap from 11 weeks of pregnancy to 7 weeks.
Later in the same month, Supreme Court Justice Samuel Alito temporarily blocked the ruling that put tighter restrictions on mifepristone, preserving full access to mifepristone in a 7-2 vote for the time being. Then, on December 13, 2023, the Supreme Court announced that it would give a final ruling on the 5th Circuit’s decision that restricted access to mifepristone.
Can I still access mifepristone right now if I need an abortion?
For now, yes—the pill is available in states where abortion pills are still legal and don’t have any restrictions. Until a final ruling comes down, abortion pills are still FDA-approved and available.
Even if mifepristone is ultimately banned though, not all hope is lost. In a statement from Plan C, the campaign and educational resource spreading awareness about self-managed abortions, the group assured that there would still be a way to get abortion medication:
Regardless of the eventual decision, abortion pills will remain safe and effective medicines and will also remain available, either through FDA approved routes such as clinics, pharmacies, and the mail system, or through the many alternate avenues of access that have emerged in the United States in response to unjust bans. These alternate access routes–including community support networks, new telehealth services, and online pill vendors–have already served tens of thousands of people since Dobbs and are poised to expand to meet demand.
Additionally, reproductive justice advocates and abortion providers have committed to offering misoprostol-only abortions, which are just as safe and effective as those involving mifepristone.
So, what happens now?
The Supreme Court has decided that mifepristone can remain available during this period, but its future is still unclear.
There is not a final decision yet, so we’ll be sure to update this story with the latest developments as they come.
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