In a unanimous ruling, The U.S. Supreme Court dismissed a case Thursday that would have restricted access to mifepristone — a drug that is used with another drug, misoprostol, to induce medication abortions. This means access to the drug will remain available in the U.S.
An Oklahoma reproductive rights group commented on the case, saying although it’s happy about the ruling, there will likely be more battles surrounding the issue in the future.
What is the ruling?
A group of anti-abortion doctors filed a lawsuit against the FDA, saying it ignored safety concerns when it expanded access to the drug in 2016 and 2021.
The 2016 decision by the FDA approved mifepristone’s use for up to 10 weeks of pregnancy and allowed health care providers beyond physicians — like certified midwives and nurse practitioners — to prescribe it. In 2021, the FDA allowed people to obtain the drug without an initial in-person visit with a doctor.
The court ruled the case’s plaintiffs lack the legal right to sue the FDA based on its approval of the drug and decisions to ease access to it. Justice Brett Kavanaugh wrote the opinion on this case, saying the doctors had not shown they were directly harmed by the FDA’s decisions.
“Citizens and doctors do not have standing to sue simply because others are allowed to engage in certain activities – at least without the plaintiffs demonstrating how they would be injured by the government’s alleged under-regulation of others,” Kavanaugh wrote. “Citizens and doctors who object to what the law allows others to do may always take their concerns to the Executive and Legislative Branches and seek greater regulatory or legislative restrictions on certain activities.”
Medication abortions accounted for 63% of all abortions in the U.S. in 2023. Because of Oklahoma’s near-total abortion ban, medication abortions are only available for those who travel out of state or access abortion pills through mail.
Requests for self-managed medication abortions have risen since Roe v. Wade was overturned and have particularly grown in states with total abortion bans, like Oklahoma. The state, for example, saw a nearly 216% increase per week in self-managed medication abortions through the telemedicine nonprofit Aid Access, according to a 2022 study.
From September 2000 to the end of 2022, nearly 6 million patients took mifepristone, and 32 of those died after using it.
What does the local response look like?
Tamya Cox-Touré, a co-chair for the Oklahoma Call for Reproductive Justice, said this decision has little impact in the grand scheme of things. But this case was one her organization was watching.
“The FDA is full of the experts and the scientists and the health care providers, and I think what this case was trying to do was trying to intervene with the judiciary making those decisions, which the FDA, and I think other (organizations), have said that is not the right role of the judiciary,” Cox-Touré said.
She said her concern is the case only addresses how the particular plaintiffs did not have standing in their lawsuit because they didn’t experience direct harm through the FDA’s decisions. She said people who have experienced direct harm by mifepristone could bring a similar case encouraging a different outcome.
Cox-Touré noted Oklahoma considered further restrictions to abortion in the state legislature this year, with a specific focus on abortion-inducing drugs.
“Even with our very extreme ban, legislators and policymakers are still trying to find ways to make it more difficult for people to make decisions about when to become pregnant,” Cox-Touré said.
She said although the Oklahoma Call for Reproductive Justice is happy mifepristone is still available, access to abortion care is still too limited for Oklahomans.
“(The decision) just doesn't get us the care and the access that we need in Oklahoma, for us to be able to see the Oklahoma that we believe in, that should be thriving, and that thriving includes access to abortion care,” Cox-Touré said.
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