Updated Mar 26, 2024 - Health

How the Supreme Court could determine abortion pill access

Packet of abortion pills

Packet of mifepristone and misoprostol. Photo: Soumyabrata Roy/NurPhoto via Getty Images

The Supreme Court is set to hear oral arguments Tuesday in a case that could have far-reaching effects on access to the abortion pill mifepristone.

Why it matters: Not only could the court's decision further curtail abortion access across the country, but it could also have wider implications for the Food and Drug Administration's regulatory authority.

The big picture: Americans have increasingly turned to abortion pills in recent years when seeking to terminate pregnancies.

  • Medication abortions accounted for 63% of all U.S. abortions in 2023, the highest figure on record, according to the Guttmacher Institute, a research organization that supports abortion rights.
  • Telehealth abortions gotten through mail-order prescriptions rose during the pandemic and in the wake of the Supreme Court overturning Roe v. Wade nearly two years ago.
  • At the center of the current legal fight is the abortion pill mifepristone, which is typically used as part of a two-pill regimen for medication abortion.

Approval of mifepristone

The Food and Drug Administration approved mifepristone for use back in 2000.

  • Yet since 2016, the FDA has rolled out other changes, like expanding the timeframe of when the drug could be used from seven weeks into pregnancy to 10 weeks and allowing patients to get the medication by mail.
  • Next week the Supreme Court will hear arguments over whether the FDA erred when allowing for this expanded access, per The 19th.

How we got here

Last April, Texas District Judge Matthew Kacsmaryk issued a decision pausing the FDA's 2000 original approval of mifepristone, making it unavailable even in states that protect access to abortion.

  • The Justice Department quickly appealed the ruling. Days later, the 5th U.S. Circuit Court of Appeals in New Orleans partly blocked Kacsmaryk's ruling, refuting its bid to undo the FDA's approval but reimposing restrictions the FDA lifted in recent years.
  • The Supreme Court temporarily blocked any restrictions from taking effect while challenges to the FDA's authority played out.

State of play: In August, a three-judge panel at the 5th U.S. Circuit Court of Appeals upheld portions of the previous ruling that limited access to mifepristone.

How could a ruling affect the future of medication abortion?

If the Supreme Court reimposes the previously lifted restrictions, it would effectively prevent patients from using telemedicine appointments to acquire abortion pills and shorten the timeframe for mifepristone use.

  • Reimposing the FDA's old seven-week limit for mifepristone would have a more limited practical effect since in most states doctors can legally use medical discretion to prescribe the pill 12 weeks into pregnancy, the New York Times reported.
  • However, curtailing the ability to get mifepristone prescriptions via telemedicine would curtail access to the pill even in states where abortion is legal.
  • It would once again force patients to travel to a clinic to get the pill, assuming they can book a timely in-person appointment.
  • It would also be a critical blow to patients in states where abortion is banned or restricted, where mail-order access has provided a pivotal pathway to circumvent those limits.

Zoom out: If the Supreme Court's rules to restrict access to mifepristone it could also open the door to other legal challenges to other FDA drug approvals.

  • Some legal experts believe the agency's scientific judgments on contraceptives, hormones for gender-affirming care or vaccines could be subject to dispute.

Where you can buy abortion pills

Due to the Supreme Court's temporary stay, mifepristone has remained available as the legal fight has played out.

  • Walgreens and CVS announced plans earlier this month to start selling abortion pills in states where the procedure is legal.

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