How the Supreme Court case on the abortion drug mifepristone could affect 2024 election

WASHINGTON − It was an unscripted jab.

During President Joe Biden’s State of the Union address this month, he departed from his prepared remarks on the Supreme Court’s 2022 decision overturning the constitutional right to an abortion to directly address the justices sitting in the front row of the House chamber.

First, Biden reminded listeners that the court had said it was returning the issue of abortion to elected representatives, writing in its explosive decision: “Women are not without electoral or political power.”

Then, in unscripted remarks, the president turned to the justices.

“You’re about to realize just how much you were right about that,” Biden said as Democrats applauded.

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Abortion drug mifepriston in Supreme Court's crosshairs

His unusual, personal warning came a few weeks before the Supreme Court prepares to take up its first big abortion case since its divisive 2022 ruling in Dobbs v. Jackson Women’s Health Organization.

The court’s decision on whether to reimpose significant restrictions on the abortion pill mifepristone could have an impact on former President Donald Trump’s challenge to Biden’s re-election − but how much is unclear.

Abortion not as important an issue for voters

Nearly two-thirds of adults hadn’t heard anything about the abortion pill case in a February poll from KFF, a nonpartisan health research organization. That included about 60% of women of reproductive age living in states where abortion is currently available but could become more difficult depending on the high court's ruling.

Abortion has fallen in importance to voters. The 12% who said it’s the most important issue in their 2024 vote is down from 24% in 2022, according to KFF.

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“It was one of the more important issues deciding close elections in the 2022 midterms, but we haven’t seen it rise to the same level of importance currently for the 2024 election,” said Ashley Kirzinger, KFF’s director of survey methodology.

That could change depending on how the Supreme Court decides this case, as well as another it will hear next month.

What the Supreme Court is deciding

On Tuesday, the justices will consider if the Food and Drug Administration correctly allowed mifepristone to be dispensed through the mail; let nurse practitioners and physician assistants prescribe the drug in addition to doctors; and let pregnant patients take the drug up to ten weeks into a pregnancy instead of seven.

And in April, the Supreme Court will review whether federal law requires doctors in emergency rooms to perform abortions when needed to treat an emergency medical condition, even if doing so might violate a state’s abortion restrictions.

More: Sen. Kaine: SCOTUS ruling against mifepristone access would cause a political "earthquake"

Mary Ziegler, an expert on the law, history, and politics of reproduction at the University of California, Davis School of Law, said Biden would get the biggest political boost if the court issues “big, splashy, sweeping anti-abortion decisions.”

“Every time there’s an instance of overreach, it is another moment of radicalization,” said Rachel O’Leary Carmona, executive director of Women’s March, who has organized protests from the start of the court hearings over mifepristone. Carmona said hundreds of abortion rights activists will be outside the Supreme Court Tuesday to spotlight “what is at stake for women not only in this court case, but at the polls in November.”

More than 60% of abortions in the United States last year were completed with pills, according to the Guttmacher Institute, a research group that supports abortion rights.

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What abortion drug decision would most help Trump?

The best outcome for Trump’s campaign, Ziegler said, is if the Biden administration wins both cases or if the decisions are hard for the public to understand.

That would help Trump argue that abortion isn’t going to be a big issue for the next president, she said, so “if you’re unhappy with Joe Biden about other things, go ahead and focus on that.”

The Supreme Court has a possible off-ramp to defuse Tuesday’s case. The justices could avoid ruling on whether the FDA’s decisions were proper by deciding the challengers – doctors and groups that oppose abortion – don’t have a sufficient claim of harm to sue the agency.

More: Abortion pill challenge gives Supreme Court chance to move toward national abortion ban

Reproductive rights a top issue for Biden campaign

No matter how the cases are decided, the Biden campaign is expected to continue to make reproductive rights a top focus.

The Biden camp is arguing the reversal of Roe v. Wade, and the resulting abortion restrictions around the country, are a direct result of the judicial appointments Trump brags about.

And they’re highlighting a policy playbook put together by the conservative Heritage Foundation that includes additional steps Trump could take to restrict abortion if he returns to the White House. Those include using a nineteenth century obscenity law to impose a de facto federal abortion ban.

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“If he gains power, Donald Trump will go even further and strip American women of their freedom to make decisions about their own bodies,” said Sarafina Chitika, a Biden campaign spokesperson.

The Trump campaign did not respond to a request for comment about Tuesday’s Supreme Court case.

Comparing Trump, Biden mifepristone records

But Katie Glenn Daniel, state policy director for the prominent anti-abortion group SBA Pro-Life America, said Trump’s record on mifepristone is in stark comparison to Biden’s.

After restrictions on the FDA’s in-person pick up requirement for mifepristone were lifted in 2020 because of the pandemic, the Trump administration successfully petitioned the Supreme Court to restore them.

Related: Donald Trump, under fire over abortion, calls on Alabama to reverse course and protect IVF

The requirement was then lifted by the FDA after Biden took office in 2021. In January, the FDA allowed pharmacies to become certified to dispense mifepristone, which CVS and Walgreens have done.

“The difference could not be more clear,” Daniel said.

She argued restrictions on mifepristone are politically popular once voters understand that they had been in place for years.

“It’s saying women should see a doctor,” Daniel said of the previous requirement that women make two in-person clinical visits to receive the abortion drugs and one follow-up visit. “If we can cut through the lies and educate and communicate that, I think people are going to say, `What’s the big deal?’”

This article originally appeared on USA TODAY: Supreme Court wades into election year fight with abortion pill case