Supreme Court unanimously allows continued use of FDA-approved abortion pill mifepristone

The Supreme Court blocked a lawsuit against the Food and Drug Administration’s (FDA) approach to regulating, one of two drugs used for medication abortions. In a unanimous ruling, the judges decided that the plaintiffs did not have standing and that mifepristone could continue to be used as approved by the FDA.^[]

“[T]he plaintiffs want FDA to make mifepristone more difficult for other doctors to prescribe and for pregnant women to obtain,” wrote Justice Brett Kavanaugh in the court’s opinion. “Under Article III of the Constitution, a plaintiff ’s desire to make a drug less available for others does not establish standing to sue. Nor do the plaintiffs’ other standing theories suffice. Therefore,the plaintiffs lack standing to challenge FDA’s actions.”

The syllabus cited the 1984 case Allen v. Wright, which held that generalized grievances do not serve as standing for filing federal lawsuits.^[] “Federal courts do not operate as an open forum for citizens ‘to press general complaints about the way in which government goes about its business,’” the syllabus elaborated.^[]

The court also rejected the plaintiffs’ challenges against the safety of the drug, which included claiming that the FDA’s “relaxed” regulation of mifepristone brings conscience and economic injuries to doctors.

In the area of conscience injuries, the plaintiffs argued that because of mifepristone’s availability, more women may use the drug and may potentially suffer consequences that require emergency abortions to resolve. Should this chain reaction occur, the plaintiffs say, more doctors may be forced to provide abortions against their consciences. The court wrote that this is not valid standing, as United States laws currently protect doctors from being required to perform abortions—or other treatments—if doing so “violates their consciences.”

In the area of economic injury, the plaintiffs argued that because of mifepristone’s availability, more women may suffer complications from the drug that require time and money to treat, and that more patients may sue doctors for such complications, thereby increasing insurance costs. The court wrote that these arguments did not constitute valid standing. Among other reasons, Kavanaugh wrote that all drugs come with side effects and risks; he then compared the mifepristone argument with other hypothetical arguments in which doctors would not have standing:

“A local school district starts a middle school football league—does a pediatrician have standing to challenge its constitutionality because she might need to spend more time treating concussions? A federal agency increases a speed limit from 65 to 80 miles per hour—does an emergency room doctor have standing to sue because he may have to treat more car accident victims?”

“The answer is no: The chain of causation is simply too attenuated,” Kavnaugh continued. 

The plaintiffs’ final argument was that they should have standing because of the economic burden they took on to finance their lawsuit. But without having suffered a concrete injury caused by the defendant, Kavanaugh wrote, an organization cannot “spend its way into standing simply by expending money to gather information and advocate against the defendant’s action.”

Some medical doctors and pro-choice organizations voiced their support of the Supreme Court’s ruling.

The ASRM added that it is “pleased that Americans will retain access to this essential medication, and that physicians will be able to provide evidence-based care for their patients,” 

Other physicians say the decision allows them to continue providing care to patients who choose to undergo medication abortions or who need to do so when other options are not safe. 

“Many of my colleagues and I view this decision as a crucial step in preserving access to safe, medication-based abortion options,” says Matthew Casavant, DO, an OB/GYN who performs minimally invasive surgeries, and the founding physician of South Lake OB/GYN. 

Prior to the Supreme Court decision, Dr. Cassavant says, his team conducted “thorough professional training sessions to ensure that our staff is well-prepared to offer comprehensive counseling and care related to mifepristone.” He also recently used mifepristone to assist a patient with a medical abortion, which was “crucial for her health and well-being,” he says.

“The decision has allowed us to continue providing this vital service without interruption, maintaining the same level of patient care and support that has always been our hallmark,” he adds.

Dr. Casavant says the future of the abortion pill remains uncertain due to legal and political unrest. Additionally, though cleared by federal law, access to medication abortions is restricted by 15 states.^[] 14 states have near-total bans on abortion care.

Throughout this, Dr. Casavant says, “our duty as healthcare providers is to advocate for the availability of all safe medical options to ensure comprehensive care for our patients.”