The Supreme Court’s anti-abortion conservatives could restrict abortion pills sent through the mail, even in blue states

(Jeff Roberson/Associated Press)

The Supreme Court’s anti-abortion conservatives could restrict abortion pills sent through the mail, even in blue states


David G Savage

March 25, 2024

The Supreme Court’s anti-abortion majority will question whether to order a reversal of U.S. drug laws and ban women from obtaining abortion drugs at pharmacies or through the mail.

A ruling to restrict the most common abortion method would limit the rights of women in California and other states where abortion remains legal.

“Maybe we thought we were protected because California supports abortion, but this decision [on abortion pills] will have a national reach,” said Dr. Daniel Grossman, professor of obstetrics at UC San Francisco.

The case is the most important abortion question to have come before the court since then


has destroyed the constitutional right to abortion.

In the Dobbs ruling two years ago, the 5-4 majority sought to reassure those living in states where abortion remains protected. Judges should not make the rules on abortion, they said, pledging to “give that authority back to the people and their elected representatives.”

But that promise faces a major test. Conservative judges in Texas have shown themselves very willing to rewrite the rules on abortion drugs and enforce their rules


in blue states.

Whether they will prevail now depends on the three conservative justices appointed by President Trump who were crucial to overturning Roe vs. Wade: Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett. If all three join Justices Clarence Thomas and Samuel A. Alito, they could reverse the use of abortion pills.

“It could eliminate telemedicine and reimpose the in-person dispensing requirement,” Grossman said. “It could also set a very bad precedent for the FDA.”

Several years after the drug mifepristone was legalized in much of Europe, the Food and Drug Administration approved its use in 2000 as a safe and effective means of terminating early pregnancy. Since 2016, the agency has liberalized its regulations to allow patients to consult a doctor via telemedicine and obtain the pills without having to travel to a clinic. It is now part of a two-drug combination responsible for more than half of abortions in the US.

When taken in combination with misoprostol, the pills cause cramps and some bleeding. It


may sometimes require a doctor’s intervention to complete the abortion, but the FDA says serious complications are “extremely rare,” noting that more than 5 million women in the U.S. have used the drug since 2000.

More than a dozen major medical groups, led by the American College of Obstetricians & Gynecologists and the American Medical Assn., said in friend-of-the-court briefs that two decades of research has shown the drugs to be safe.

“When used in medication abortion, serious adverse events, significant infections, excessive blood loss, or hospitalization occur in less than 0.32% of patients,” they wrote.

or about a third of 1%


On Tuesday, however, the court will hear a broad attack on the FDA from attorney Erin M. Hawley, the wife of Republican Senator Josh Hawley of Missouri and a former law clerk to Chief Justice John G. Roberts. She says the court should not “turn a blind eye to the FDA’s clearly unreasonable actions here, which endanger the health of women across the country.”

Hawley does not represent women who say they have been injured by the drugs or doctors who prescribe the drugs. Instead, she represents a group of doctors who oppose abortion on religious and moral grounds.

They claim they have the legal standing to sue the FDA because some members of the group work in emergency rooms, and they could be forced to treat patients who have taken abortion pills and gone to a hospital for bleeding or other complications.

“When we face these emergencies, [the doctors] have no choice but to provide immediate treatment, even though this type of participation in an elective abortion harms their conscience and harms them in other ways,” Hawley wrote in her letter to the court.

Shortly after the Supreme Court revoked the right to abortion in the Dobbs case, Hawley


filed a lawsuit in Amarillo, Texas


seeking the FDA’s revocation of mifepristone’s approval.

The location was no coincidence. Her lawsuit would go before U.S. District Judge Matthew Kacsmaryk, a Trump appointee


was an outspoken enemy of gay marriage and LGBTQ+ rights. Kacsmaryk had been deputy general counsel for the First Liberty Institute, a Christian conservative nonprofit that works on religious freedom cases, and had criticized the landmark Roe v. Supreme Court’s 1973 Wade decision before it was reversed.

In recent decades, conservatives have often protested “judicial activism” and judges “making law from the bench.” In recent years, however, conservative activists have gone before judges in red states to push for major changes in the law that they couldn’t get from Congress or the White House.

As predicted, Kacsmaryk issued a broad statement against what he called “chemical abortion” and ordered the FDA to “suspend” approval of the drugs. In a statement using language common to anti-abortion groups, Kacsmaryk said the studies submitted by the FDA did not convince him that mifepristone was safe.

The government urgently appealed last April, and the U.S. Court of Appeals for the 5th Circuit agreed to limit Kacsmaryk’s ruling. By a 2-1 vote, the appeals court said it was too late to overturn the drug’s approval in 2000, but also not too late to overturn FDA regulations, which since 2016 have made it easier for women to participate the pills to come, undo.

The Biden administration’s Attorney General Elizabeth B. Prelogar called the case a first.

She said it is “the first time that a court has limited access to an FDA-approved drug by questioning the FDA’s expert judgment on the conditions necessary to ensure that drugs can be used safely.”

She urged the Supreme Court to suspend the lower courts’ rulings, and the justices did so following dissents from Thomas and Alito. A few months later, the court agreed to rule in the case of FDA vs. Alliance for Hippocratic Medicine.

Abortion rights advocates are concerned about what has happened so far.

“This is a mockery of our justice system,” said Julia Kaye, an attorney for the American Civil Liberties Union. “This is a group of anti-abortion extremists appearing before a hand-picked judge and using junk science and sham claims about women’s health to serve their true goal: making abortion inaccessible.”

The attorney general, who represents the FDA, will urge the court to quietly end the case by dismissing the lawsuit.

Typically, the court has determined that plaintiffs can only sue under a law or regulation if they are or will be personally injured as a result.

The anti-abortion doctors who filed a lawsuit ‘don’t prescribe mifepristone, and the FDA’s actions allow them to


providers who prescribe the drug do not require them to do or refrain from doing anything,” Prelogar wrote in its letter to the court. They “have not even identified a single doctor among their thousands of members who has ever had to perform an abortion. in the decades that mifepristone has been on the market.”


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