Highlights From the Supreme Court’s Abortion Pill Ruling (2024)

The Supreme Court, for now, upholds access to a widely available abortion pill.

“The plaintiffs do not prescribe or use mifepristone,” Justice Kavanaugh wrote. “And F.D.A. is not requiring them to do or refrain from doing anything.”

He added, “A plaintiff ’s desire to make a drug less available for others does not establish standing to sue.”

The case originally sought to erase the F.D.A.’s approval of mifepristone. But by the time it reached the Supreme Court, the question had been narrowed to whether the agency had acted legally in 2016 and 2021, when it broadened distribution of the pill, eventually including telemedicine and mail options.

The ruling handed a muted victory to abortion rights groups. Even as they praised the decision for averting severe restrictions on the availability of the pill, they warned that the outcome could be short-lived.

Anti-abortion groups vowed to press ahead, promising that the fight was far from over and raising the possibility that other plaintiffs, states in particular, would mount challenges to the drug.

The ruling did not affect separate restrictions on the pill in more than a dozen states that have passed near-total bans on abortion since the court eliminated a constitutional right to the procedure in Dobbs v. Jackson Women’s Health Organization. (The bans do not distinguish between medication and surgical abortion.)

Access to abortion remains broadly popular, and ever since the court overturned Roe v. Wade two years ago, prompting some states to swiftly enact bans, the issue has been a major focus of political campaigns. Democrats have succeeded in galvanizing voters to defeat anti-abortion measures and plan to highlight abortion rights in the November elections.

By dodging a ruling on the substance of the case, the justices avoided delivering a clear, substantive win to either political party or a decision they could use to motivate their base.

President Biden said in a statement that the “decision does not change the fact that the fight for reproductive freedom continues.”

He added, “It does not change the fact that the Supreme Court overturned Roe v. Wade two years ago, and women lost a fundamental freedom.”

The Biden campaign also raised concerns that the ruling would not be enough to protect access to abortion medication if former President Donald J. Trump wins a second term, saying his administration would move to enforce new restrictions through executive action.

Mr. Trump had wrestled with what position to take on abortion access after the Supreme Court, whose conservative supermajority he appointed, overturned the Roe v. Wade landmark abortion-rights case. Several weeks ago, he said it was up to states to set their own policies.

His campaign suggested he staked out a similar position on the abortion pill ruling, without addressing how his administration would handle regulation of the drug. “The Supreme Court has unanimously decided 9-0; the matter is settled,” Danielle Alvarez, a Trump spokeswoman, said.

Abortion rights groups cautioned that the ruling only maintained the status quo.

“The anti-abortion movement sees how critical abortion pills are in this post-Roe world, and they are hell bent on cutting off access,” Nancy Northup, the president of the Center for Reproductive Rights, said in a statement.

Erin Hawley, senior counsel for Alliance Defending Freedom, the conservative legal organization that represented the plaintiffs, suggested that the case could be revived through three Republican-led states, Idaho, Kansas and Missouri, which had intervened as plaintiffs at the lower court level.

“We are grateful that three states stand ready to hold the F.D.A. accountable for jeopardizing the health and safety of women and girls across this country,” Ms. Hawley said in a statement.

Mifepristone, part of a two-drug regimen, is used in nearly two-thirds of abortions in the United States. Many studies have found the pill to be safe, and years of research have shown that serious complications are rare.

After the F.D.A. loosened restrictions on the drug’s availability during the pandemic, allowing for it to be prescribed online or sent by mail, its use only increased. A rising number of medication abortions are prescribed by telemedicine. By one count, about one in six abortions, or around 14,000 a month, happened via telehealth from July through September 2023.

Medication abortion has become a practical form of abortion for women in states where the procedure is banned. Clinicians, protected by so-called shield laws in several states where abortion is legal, have mailed pills to women based in states with bans.

Justice Kavanaugh focused part of the majority opinion on why the justices disagreed with rulings by lower courts, which all determined the groups had standing to bring the case.

Citing Justice Antonin Scalia, Justice Kavanaugh wrote that to bring a suit, a plaintiff first must answer a basic question: “What’s it to you?”

Plaintiffs must show “a predictable chain of events leading from the government action to the asserted injury,” Justice Kavanaugh wrote.

In this instance, he wrote, the doctors and medical associations trying to challenge F.D.A.’s regulation failed to show an actual injury because the plaintiffs did not include people actually involved with the pill, such as doctors who prescribed mifepristone or pregnant women who took it.

The plaintiffs’ claims that they have “sincere legal, moral, ideological, and policy objections to mifepristone being prescribed and used by others” do not meet the threshold of standing to sue, Justice Kavanaugh wrote.

The justices also rejected an argument by the anti-abortion doctors that they had standing to sue because they could be required to provide emergency abortions against their conscience.

Federal conscience laws already protect doctors from being required to perform abortions or other treatment that violates their consciences, and none of the doctors had shown otherwise, Justice Kavanaugh wrote.

In a concurring opinion, Justice Clarence Thomas noted that he supported the decision “in full,” but cautioned that the court should take a limited view of when to allow organizations to claim standing on behalf of their members.

The case returned the issue of abortion to the Supreme Court, even as the conservative majority had declared, in overturning Roe v. Wade, that it would cede the question of access “to the people and their elected representatives.”

Its decision on Thursday appeared to vindicate that promise, although the court will soon decide another major case on abortion, involving a clash between federal law and tightened state restrictions.

The abortion pill case, F.D.A. v. Alliance for Hippocratic Medicine, reflected a new front in the fierce fight over abortion.

In the fall of 2022, an umbrella group of anti-abortion medical organizations, along with several doctors, challenged the F.D.A.’s approval of mifepristone more than two decades ago. In a preliminary ruling, a federal judge in Texas, Matthew J. Kacsmaryk, said that the F.D.A.’s approval of the drug should be suspended, removing mifepristone from the market.

Judge Kacsmaryk, a Trump appointee, joined the federal bench after years litigating at a conservative religious freedom firm, First Liberty Institute.

An appeals court, in New Orleans, overturned the part of Judge Kacsmaryk’s ruling that invalidated the F.D.A.’s approval of the pill, but it imposed certain restrictions on its distribution. Those restrictions included prohibiting the medication from being sent by mail or prescribed by telemedicine.

Maggie Haberman and Lisa Lerer contributed reporting from New York.

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Abortion rights groups celebrate the win, but fear ‘we are far from out of the woods.’

While the court on Thursday threw out the challenge from the Alliance for Hippocratic Medicine, attorneys general in three Republican-led states — Idaho, Missouri, and Kansas — are leading similar challenges that are likely to end up before the court.

And while the decision means that medication abortion will continue to be available at some pharmacies and by mail in states where abortion is legal, it does not change the fact that the pills remain illegal in the 14 states that ban abortion.

“Unfortunately, the attacks on abortion pills will not stop here — the anti-abortion movement sees how critical abortion pills are in this post-Roe world, and they are hellbent on cutting off access,” Nancy Northup, the president of the Center for Reproductive Rights, said in a statement. “In the end, this ruling is not a ‘win’ for abortion — it just maintains the status quo, which is a dire public health crisis.”

Abortion rights supporters argued that the challenge should never have ended up before the high court, because it was based on what many described as “junk science.” Two of the studies that anti-abortion groups had submitted to the court arguing that pills caused medical harm were retracted by medical journals.

Abortion rights and leading medical groups argue that the pills are “safer than Tylenol.”

“Decades of clinical research have proven mifepristone to be safe and effective, and its strong track record of millions of patient uses confirms that data,” Dr. Stella Dantas, president of the American College of Obstetricians and Gynecologists, said in a statement. “As the unanimous decision from the court makes clear in no uncertain terms, the people who brought this case were driven solely by a desire to impose their views on others and make it harder for patients to access safe, effective abortion care when they need it.”

Democratic leaders urged voters to stay energized to protect abortion rights, an issue that has driven gains for the party since the Supreme Court overturned Roe v. Wade two years ago. In a call with reporters, Julie Chavez Rodriguez, President Biden’s campaign manager, noted that the challenge to the abortion pills happened because of that decision by the court, which removed federal protections for abortion, and that the court overturned Roe v. Wade only because former President Donald J. Trump appointed three conservative justices.

She and Mini Timmaraju, the president of Reproductive Freedom for All, noted that Project 2025, drafted by groups supporting Mr. Trump, included a plan for him to direct the Food and Drug Administration to remove its approval of abortion pills. Trump allies are also pushing the revival of the Comstock Act, a 19th century anti-vice law, to prohibit mailing the pills even in states that allow abortion.

“We are going to be reminding Americans of all that’s at stake for reproductive freedom not just today, but on the debate stage — and every single day leading up to the election,” Ms. Chavez Rodriguez said. The campaign is planning abortion rights rallies on the anniversary of the court’s decision overturning Roe on June 24, which is three days before President Biden and Mr. Trump meet for their first debate before November’s election.

Anti-abortion activists press ahead after the loss: ‘We’ll be back.’

She expressed hope that the court left room for legal action to continue for three states — Idaho, Kansas, and Missouri. In the long arc of anti-abortion activism, court losses historically can become victories as the lawyers and activists adapt their strategies and hone their arguments. Future challenges could consider alternative standing arguments, Ms. Hawley said.

“We stand with our allies, Attorneys General Raúl Labrador, Kris Kobach and Andrew Bailey, fighting to hold government bureaucrats accountable for betraying women and children,” Katie Daniel, the state policy director for Susan B. Anthony Pro-Life America, said in a statement, referring to Republican attorneys general in those states.

Activists continued to push their message, dismissed by mainstream scientists, that the abortion pill is harmful to women. Some, like Students for Life, attempted to pivot toward future unconventional legal arguments, like arguing against abortion on environmental grounds.

“The Biden Administration allowed distribution of Chemical Abortion Pills in a way that exposes women to injury, infertility, and death, as well as empowers abusers and created abortion water pollution,” Kristan Hawkins, the group’s president, said in a statement. “We’ll be back.”

Their eyes are also fixed on a remaining case about whether hospital emergency rooms are required to provide abortions in urgent situations, like if a woman’s life is in jeopardy. The Supreme Court is expected to decide that case this term.

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The president of the American Medical Association, Dr. Bobby Mukkamala, citing an association between restricted access to safe and legal abortion and higher rates of maternal morbidity and mortality, said the A.M.A. would continue to support access to “safe and effective reproductive health care against the ongoing threats of interference in the practice of medicine.”

The case is likely to be revived with three states as plaintiffs.

But the case is likely to be revived with different plaintiffs: three Republican-led states that months ago petitioned successfully to join the case at the lower court level.

Late last year, the states — Missouri, Idaho and Kansas — were granted status to be plaintiffs by Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas, an appointee of President Donald J. Trump who heard the original lawsuit and who openly opposes abortion access. When the case was accepted by the Supreme Court, the justices denied the three states’ request to intervene as plaintiffs at that level.

But anti-abortion groups say the three states will likely now return to the district court and resurrect the attempt to restrict access to the medication, mifepristone.

In a statement on Thursday, SBA Pro-Life America, an anti-abortion group said: “The case returns to district court where the pro-life states of Idaho, Kansas and Missouri are seeking to take up the challenge based on harms suffered by women in their states.”

Questions of legal standing would be different for the states than they were for the anti-abortion doctors and medical groups, who claimed that they were injured by occasionally having to treat women who came to emergency rooms after taking abortion pills. The states would say they have been harmed because the federal government’s regulations allowing access to mifepristone have flouted state restrictions on abortion access.

“I would expect the litigation to continue with those states raising different standing arguments than made by our doctors,” Erin Hawley, a lawyer who represented the anti-abortion medical plaintiffs in the Supreme Court case, said Thursday.

The decision will also fuel efforts to restrict abortion pills in other ways. One recent example involved Louisiana classifying abortion pills as Schedule IV drugs, a category of controlled substances with some potential for abuse or dependence that includes Ambien, Valium and Xanax, among others. The categorization is contrary to medical evidence, and because Louisiana already bans most abortions, abortion rights activists and legal scholars said that in practice, the measure might not prevent many abortions among Louisiana women.

But on a political level, the new law in Louisiana supports the claim by critics that abortion pills are dangerous. And abortion-rights supporters say that such laws can create confusion among patients about what access is available to them, which might deter some from seeking abortions.

On the abortion rights side, the Supreme Court decision will likely embolden efforts to provide abortion access for women in the states with bans and restrictions. These include telemedicine abortion services, which continue to grow and have helped make medication the method used for nearly two-thirds of abortions in the United States.

There will also likely be greater use of shield laws, which allow doctors and abortion providers in states where it is legal to prescribe and mail pills to women in states with bans and restrictions, without requiring the women to travel out of state. Such laws have been enacted in seven states so far.

Trump wrestled with what position to take after the Supreme Court, whose conservative supermajority he appointed, overturned the Roe v. Wade landmark abortion-rights case. Several weeks ago, he said it was up to states to set their own policies.

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Status quo ruling may help Republicans minimize a political disadvantage.

A ruling limiting access to the medication would have given Democrats another way to hammer their opponents on an issue that’s become politically damaging for Republican politicians.

Since the Supreme Court decision that overturned Roe v. Wade in 2022, Republican candidates have struggled to reconcile their party’s decades-old opposition to abortion rights with the issue’s shifting political reality.

Donald J. Trump has notably refused to state his position on abortion medication, promising in April to release a policy on the issue “over the next week.”

On Thursday, his campaign tried to move past the issue and turn attention back to Mr. Biden.

“The Supreme Court has unanimously decided 9-0. The matter is settled,” said Danielle Alvarez, a senior adviser to the Trump campaign. “This election is about correcting the weakness, failures and dishonesty of the Biden crime family.”

Mr. Trump said that Republicans needed to improve their messaging on the issue in meetings with congressional Republicans on Capitol Hill after the decision. He urged his party to avoid discussion of bans at a specific number of weeks and instead leave the issue to the voters, according to a person in the room.

But the next president will have the power to restrict the drug or even criminalize it nationwide, through agencies like the Justice Department and Health and Human Services.

Allies of Mr. Trump and officials who served in his administration have suggested proposals that would enforce the Comstock Act, a long-dormant law from 1873, to criminalize the shipping of any materials used in an abortion — including abortion pills.

On a call with reporters, supporters of President Biden’s campaign said Mr. Trump would impose a national ban on medication abortion through executive action, pointing to policy plans released by his allies that would reverse the F.D.A.’s approval of the drug. Aides said that Mr. Biden plans to address the issue at the first presidential debate, scheduled for later this month, contrasting his support for abortion rights with Mr. Trump’s position that the policy should be left for states to decide.

“Trump and his allies are laying the groundwork to ban medication abortion nationwide,” said Mini Timmaraju, the chief executive of Reproductive Freedom for All, an abortion rights organization. She blamed the former president — who appointed three of the court’s conservative justices — for overturning Roe v. Wade, which established the constitutional right to abortion, in 2022.

The ruling is unlikely to end efforts by the antiabortion movement to restrict abortion medication. Missouri, Kansas and Idaho, all states with Republican attorneys general, remain parties in the lower court case and could try to revive the litigation as new plaintiffs.

Maggie Haberman contributed reporting.

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The ruling has nothing to do with the pills’ safety or morality.

The plaintiffs in the case, doctors and medical associations who oppose abortion, had no good answer to that question, Justice Kavanaugh wrote.

Their main theory was that there was a statistical possibility that some doctors may at some point work in an emergency room and have to treat patients suffering from complications after taking the pill, subjecting the doctors to “enormous stress and pressure” and making them choose between their consciences and their professional obligations.

Justice Kavanaugh rejected that reasoning. “The plaintiff doctors and medical associations are unregulated parties who seek to challenge F.DA.’s regulation of others,” he wrote.

“Specifically, F.D.A.’s regulations apply to doctors prescribing mifepristone and to pregnant women taking mifepristone,” he wrote. “But the plaintiff doctors and medical associations do not prescribe or use mifepristone. And F.D.A. has not required the plaintiffs to do anything or to refrain from doing anything.”

It was significant, he wrote, that so-called conscience protections in federal law ensured that the plaintiffs never have to perform abortions or deal with possible complications from them.

The standing doctrine can mean that some legal questions never get answered in federal court, Justice Kavanaugh wrote. “Some issues,” he wrote, “may be left to the political and democratic processes.”

There are other avenues to try to limit the availability of the pills, he added.

“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,” he wrote. That statement echoed a sentiment in the court’s 2022 decision overturning Roe v. Wade, which said the issue of abortion should be left to the elected branches.

Standing is a neutral legal principle that applies to the right and left alike, Chief Justice John G. Roberts Jr. wrote in an influential 1993 law review article while he was a lawyer in private practice.

“It restricts the right of conservative public interest groups to challenge liberal agency action or inaction,” he wrote, “just as it restricts the right of liberal public interest groups to challenge conservative agency action or inaction.”

Walter Dellinger, a former acting U.S. solicitor general, once said a rigorous approach to standing was consistent with Chief Justice Roberts’s statement at his confirmation hearings that judges should aspire to be umpires, whose only job is to call balls and strikes.

“Before any judge begins calling balls and strikes,” Mr. Dellinger said, “he must first make sure the batter at the plate is an actual player and not just a fan who ran on the field.”

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The standing requirement can leave a gap. It means, Justice Kavanaugh wrote, “that the federal courts may never need to decide some contested legal questions.”

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Yes, abortion pills are safe. Here’s what studies have shown.

The claim also contradicts the large scientific record on the safety of the pills. A New York Times review last year found that more than 100 scientific studies, spanning continents and decades, concluded that a regimen of mifepristone and misoprostol is a safe and effective method for patients who want to end a pregnancy in the first trimester.

“There may be a political fight here, but there’s not a lot of scientific ambiguity about the safety and effectiveness of this product,” said Dr. Caleb Alexander, a professor of epidemiology and medicine at the Johns Hopkins Bloomberg School of Public Health, and a co-director of the Center for Drug Safety and Effectiveness.

More recent research published provides more evidence of the pill’s safety.

Researchers found that taking abortion pills prescribed through telemedicine and received by mail is as safe and effective as when the pills are obtained by visiting a clinician. They looked at the experience of more than 6,000 patients using telemedicine abortion organizations that served 20 states and Washington, D.C. The researchers conducted the study in the months after the federal government allowed abortion pills to be mailed, from April 2021 to January 2022.

More than 99 percent of patients who took the pills had no serious complications. These uncommon complications can include hospitalizations, blood transfusions or major surgeries.

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