Abortion providers back to ‘business as usual’ after high court's mifepristone ruling

Some abortion providers were stockpiling mifepristone. Others were preparing to use alternative drug regimens to terminate pregnancies. But the Supreme Court’s decision on Thursday to uphold the FDA’s rules on abortion medication means none of that is necessary, at least right now.

"We continue business as usual,” says Lauren Jacobson, a nurse practitioner in Massachusetts who provides abortion pills, including mifepristone, by mail. “The Supreme Court has not made it more difficult than it already is for people to get access to abortion pills.” Jacobson, who works for Aid Access, one of the largest abortion-by-mail organizations that sends pills to all 50 states, says so far today, she’s written about 30 prescriptions for mifepristone.

In New Jersey, Dr. Kristyn Brandi was in a meeting with staff at a clinic that provides abortions this morning, planning to discuss contingency plans if mifepristone was no longer available.

“All of a sudden, all of us get pings on our phones and realize that the results came out, that it was unanimously — so shocking, unanimously — dismissed,” she says. “All of us just stood still for a second — we were all in shock and just so thrilled and relieved that this was not something that we had to worry about anymore.”

Mifepristone is one of two prescription drugs used for medication abortions, which account for 63% of all abortions in the U.S. It’s also frequently used in miscarriage care. It works by blocking a hormone that’s needed for pregnancy to continue. It was first approved in the U.S. in 2000, and has been used by more than 5 million people.

The possibility of mifepristone becoming less available throughout the country had “been looming in the background for weeks now,” Brandi says.

A group of doctors who oppose abortion filed a challenge to the Food and Drug Administration’s approval of mifepristone. They won a sweeping victory before a federal judge in Texas, and a more limited victory in the 5th Circuit Court of Appeals.

On Thursday, the Supreme Court unanimously ruled that they did not have grounds to sue the agency. “The plaintiffs have sincere legal, moral, ideological, and policy objections to elective abortion and to FDA’s relaxed regulation of mifepristone. But under Article III of the Constitution, those kinds of objections alone do not establish a justiciable case or controversy in federal court,” wrote Justice Brett Kavanaugh in the decision. He went on to suggest the plaintiffs express their objections in other ways, including by political or legislative means.

The Justice Department, which defended the FDA in the case, celebrated the decision. “For more than two decades, and across five presidential administrations, millions of Americans have relied upon FDA’s expert judgment that mifepristone is safe and effective for termination of early pregnancies,” wrote Attorney General Merrick Garland in a statement, adding that the department would continue to “protect and advance reproductive freedoms under federal law.”

Historian Mary Ziegler of the University of California, Davis says more plaintiffs — including a group of Republican-led states — are lining up in the lower court to challenge mifepristone access again. “I think the best way to read this is the Supreme Court kicking the can down the road,” she says.

Erin Hawley, senior counsel at Alliance Defending Freedom, argued the case before the court.

“We still have work to do,” says Hawley, who is the wife of Sen. Josh Hawley, the Republican of Missouri. In a briefing to reporters, Hawley says the fact the case was tossed out on a legal technicality, and that the justices didn't weigh in on merit left her organization “encouraged and hopeful that the FDA will be held to account.”

Kavanaugh wrote that doctors already have federal conscience protections, meaning they don’t have to prescribe mifepristone if they don’t want to. “We were hoping for a different ruling,” Hawley says.

Chelsey Youman of the anti-abortion rights group the Human Coalition wrote in a statement that “it is a travesty that the FDA will not be held accountable,” and called on states to uphold the Comstock Act, a 19th-century anti-vice law that prohibits mailing things related to abortion. It is a law that hasn’t been enforced in 50 years.

Reproductive rights groups expressed cautious relief about the ruling, noting that the status quo is not exactly a win, since more than half of U.S. states severely restrict access to abortion.

“We are relieved by this outcome, but we are not celebrating,” writes Destiny Lopez of the Guttmacher Institute, a research group that supports abortion rights. “From the start, this case was rooted in bad faith and [lacked] any basis in facts or science.”

Dr. Louise King, the director of reproductive ethics at the Harvard Medical School Center for Bioethics, says the Supreme Court came to the correct decision about the case, but agrees with Ziegler that more challenges to mifepristone are likely. “It's a pause in panic, is all it is,” she says.

“If this case has demonstrated anything, it is that we must ramp up our efforts to protect — and further increase access to — mifepristone,” Dr. Stella Dantas, president of the American College of Obstetricians and Gynecologists wrote in a statement.

For now, in places where abortion is legal, mifepristone remains available up to 10 weeks of pregnancy and can be prescribed through telemedicine.