Supreme Court hears its biggest abortion case since the fall of Roe

The fate of abortion access is back in the hands of the Supreme Court, where justices will hear oral arguments Tuesday on a case that could roll back availability of abortion pills nationwide.

This is the first major reproductive-rights case to come before the court since the 2022 Dobbs ruling, which ended the federal right to abortion. Since then, more than a dozen states have enacted restrictions or near-complete bans on the procedure. That’s coincided with and fueled a surge in use of mifepristone, one of two pills used together to terminate a pregnancy up to 10 weeks of gestation.

Mifepristone now accounts for roughly two-thirds of all abortions in the U.S., and the number of clinics offering telemedicine and mailing abortion pills increased from 7 percent in 2020 to 31 percent in 2022.

Anti-abortion groups and conservative lawmakers, who are working to restrict access to the pills in a number of ways, have asked the Supreme Court to roll back rules the FDA issued in 2016 and 2021 that made it much easier to obtain the pills, including allowing telemedicine prescription and mail delivery.

What are the stakes for abortion?

A decision in favor of the challengers would restrict access to the pills for millions — even those in blue states that protect abortion rights — and put more pressure on the dwindling number of clinics that provide surgical abortions at a time they’re struggling to serve a wave of people traveling from red states.

The court could strike down FDA rules that have allowed the pills to be prescribed online, mailed to patients and dispensed at brick-and-mortar pharmacies. The challenged policies also allowed patients to take the drug in the first 10 weeks of pregnancy, instead of seven, obtain it without making multiple in-person appointments with a doctor, and receive a prescription from a nonphysician, such as a nurse practitioner or physician assistant. These rules — adopted under the Obama and Biden administrations — made the pills much more accessible, particularly for people in rural areas and medical deserts and for those who lack transportation, and their use has exploded in recent years as a result.

Many women’s health providers, who have long braced for a ruling against the FDA, say using just misoprostol, the second of the two-pill regimen, could still be effective for ending pregnancies, though it comes with a higher risk of complications and side effects than the two drugs together. Misoprostol access is more difficult for anti-abortion activists to roll back because the drug is also used for a wide range of health issues, including the treatment of ulcers.

Could a decision ban the abortion pill?

Most likely not. The challengers petitioned the Supreme Court to hear arguments on the FDA’s original approval of mifepristone more than two decades ago, but the justices declined, and only agreed to hear arguments on the agency’s more recent rules loosening restrictions on the drug.

But while a nationwide ban is not on directly on the table, the anti-abortion groups behind this case and allied conservative groups and elected officials have tried to prompt the court in briefings to consider even more sweeping restrictions — including some, like full enforcement of the 150-year-old Comstock Act, that would function as de facto federal bans.

Additionally, the two pharmaceutical companies that produce and sell mifepristone told the Supreme Court last year that even the more modest restrictions the court is considering could amount, in practice, to a temporary ban. Reimposing the old regulations on the pills would, they said, force them to create new product labels, recertify thousands of pharmacists and prescribing doctors, apply to the FDA for a new regulatory framework and jump through other time-consuming administrative hoops — potentially cutting off patients’ access to the pill for months.

Who are the justices to watch?

If all three justices in the court's liberal wing vote in favor of upholding the FDA’s authority to expand access to mifepristone, which seems like a fair bet, the Biden administration needs two more justices to join them to overturn the 5th Circuit's 2023 ruling imposing national restrictions on the pills.

Expect Elizabeth Prelogar, the Biden administration’s solicitor general, to focus on Chief Justice John Roberts along with Justices Brett Kavanaugh and Amy Coney Barrett, all of whom have sent signals of moderation in some recent cases. Justice Neil Gorsuch might also be in play, although his deep skepticism of federal agencies’ power could make him a tough get for the Biden administration.

What are the key arguments in the case?

The case could turn on how much deference the justices show to the FDA’s decisions increasing access to mifepristone. The anti-abortion groups pressing the challenge contend the agency ignored available evidence and its own previous conclusions about the drug’s dangers when it acted in 2016 to reduce the number of doctors’ visits required for patients receiving the drug from three to one and approved use through the 10th week of pregnancy.

Abortion opponents make similar arguments against the FDA’s decisions — during the coronavirus pandemic in 2021 — to allow telemedicine prescribing and mail delivery of mifepristone, doing away with the requirement for any in-person doctor’s visit. The FDA and Danco Laboratories, one of the two manufacturers of mifepristone, contend the agency’s decisions were justified by data submitted by Danco and by the rarity of reported complications among those who took the drug.

Another issue that could derail the challenge is whether the four anti-abortion medical groups objecting to the FDA’s actions have legal standing to pursue the case. Doctors who are members of the groups contend they will have to deal with an increased number of patients seeking emergency room care due to complications, particularly since more people are being prescribed the drug from providers far from their home.

The Biden administration, the makers of the drug, and abortion-rights advocates say those claims are too speculative to give the anti-abortion groups standing. Additionally, several groups submitting amicus briefs in the case point out that the studies the anti-abortion groups cited showing a purported surge in emergency room visits caused by mifepristone were retracted by the medical journal that published them after outside researchers flagged manipulation of the data and undisclosed conflicts of interest.

The anti-abortion groups say the Biden administration is throwing up “procedural roadblocks” and they point to a variety of cases in which the court has allowed cases to proceed based on tenuous standing. However, some justices in both ideological wings of the court have signaled a desire to toughen the standing requirements.

What are the stakes for the election?

A decision in the case, expected in June, could roil the 2024 campaign, as Democrats up and down the ballot seek to make protecting abortion access a top issue and activists in more than a dozen states seek to put measures protecting abortion rights on the November ballot.

President Joe Biden’s reelection campaign argued to reporters on Monday that the case illustrates the harm wrought by former President Donald Trump — primarily his appointment of three conservative Supreme Court justices — and the dangers of him getting back in the White House.

“Whether in the courts, state legislatures, or the halls of Mar-a-Lago, Trump and extreme MAGA Republicans are showing us every day that reproductive rights are on the ballot in November,” said campaign manager Julie Chavez Rodriguez. “These are the stakes in 2024. And we're going to continue to make sure that every single voter knows that.”

The Trump campaign did not immediately respond to a request for comment. Trump, who appointed three of the five justices who overturned Roe v. Wade, has floated a 16-week federal abortion ban and promised to find a compromise that would placate both abortion-rights and anti-abortion rights advocates.

Who are the major players in this case?

In a rare occurrence at a court where men still vastly outnumber women at the lectern, a trio of women will be presenting arguments on Tuesday.

Prelogar, the solicitor general, will argue that the FDA followed science and the law when it moved in 2016 and 2021 to loosen restrictions on mifepristone.

Erin Hawley, an attorney with the conservative group Alliance Defending Freedom, will represent the Alliance for Hippocratic Medicine. The group of anti-abortion medical professionals formed in 2022 in Amarillo, Texas, the jurisdiction of the right-leaning U.S. District Court Judge Matthew Kascmaryk who ruled in 2023 to effectively ban mifepristone nationwide. Hawley, the wife of Sen. Josh Hawley (R-Mo.), will argue that the conservative doctors in the group have suffered by having to treat patients who took abortion pills and needed follow-up care.

Attorney Jessica Ellsworth will argue on behalf of Danco that the anti-abortion doctors bringing the case don’t have standing to sue based on the idea that “some unspecified member [of the group] may be injured at some future time by the challenged action.” She will also argue that lower courts who heard this case erred in ruling to override the FDA’s decision-making authority.

What are the stakes for other medications?

The Biden administration and health organizations such as the American Medical Association and the Pharmaceutical Research Manufacturers of America contend that a ruling overriding the FDA’s judgment would invite a stampede of ideologically motivated lawsuits targeting other medications — with contraception, gender-affirming care for transgender patients, HIV prevention and treatment drugs and Covid-19 vaccines being conservatives’ expected next targets.

“Any physician can ask a judge to undermine patient access to any drug nationwide — even if the physician does not treat patients using that drug — based on mere disagreement with FDA’s scientific judgment,” PhRMA said in an amicus brief.