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The United States Supreme Court Reviews Abortion Pills

On March 26, the Supreme Court heard oral arguments in FDA v. Alliance for Hippocratic Medicine focused on whether to overrule the FDA and reintroduce certain limitations on accessing abortion medication. 

Facts of the Case

Not even two years after the Supreme Court overturned Roe v. Wade, the Supreme Court revisited the issue of reproductive rights as the justices contemplated restrictions on a medication crucial to over 60% of abortions performed in the United States

The Biden administration and the manufacturer of mifepristone are challenging a recent decision by the U.S. Court of Appeals for the 5th Circuit that would complicate obtaining the medication. Mifepristone, approved almost 25 years ago and extensively studied, has consistently shown a high safety level and is approved in over 90 countries. In medical abortion, mifepristone blocks progesterone, preventing pregnancy continuation, and misoprostol, taken later, expels the tissue. However, the 5th Circuit ruled that the Food and Drug Administration failed to adhere to the correct protocols and provide detailed justifications when it initiated the relaxation of regulations. The revisions made in 2016 and again in 2021 extended the permissible use of mifepristone up to 10 weeks into pregnancy instead of the previous limit of seven weeks, permitted prescription by a non-physician medical professional, and enabled direct mailing of the medication to patients without an in-person medical assessment.

The case cites an almost 150-year-old law that is now at the center of 21st-century abortion medication in the US. The Comstock Act, passed in 1873, aimed to restrict access to things deemed immoral, including medications for abortion. However, subsequent legislation chipped away at its reach. The 1930s saw a decline in enforcement, and the contraceptive ban was explicitly overturned in the 1970s. Though long unenforced and outdated in the age of mail-order prescriptions, the act is now being cited in an attempt to limit access to mifepristone. 

The pharmaceutical industry has cautioned that questioning the FDA’s decision will catalyze a ripple effect with wider repercussions, potentially disrupting the nation’s drug approval procedures and hindering private investments in research. A ruling is expected by the end of June or early July, bringing abortion to the forefront as Democrats center on this campaign issue for the 2024 election.

Implications 

The conservative justices behind Dobbs v. Jackson Women’s Health Organization, critics of powerful federal agencies, are considering challenges that could weaken the “administrative state,” a long-time target of conservatives. If the 5th Circuit’s ruling is upheld, it may diminish the FDA’s reputation as the leading global authority in medicine regulation and impede drugmakers’ ability to attract investment, potentially curtailing access to innovative treatments for patients across the country. Such a ruling has the potential to open the door for any physician to challenge the agency’s decision on drug approvals based on disagreement.

During oral arguments, it appeared that a majority in the Court did not think that the doctors challenging the government’s loosening of regulations had sufficient standing to bring the lawsuit. Whatever the Supreme Court decides will further intensify the ongoing election-year debate surrounding abortion rights. Democrats are eager to leverage this case momentum for the election, while Republicans grapple with how to devise a position that attracts maximum political support and formulate a compelling political storyline following Dobbs. 

This case has the potential to create obstacles to abortions, even in states where abortion is allowed. Allowing medication abortions without requiring an ultrasound or in-person medical visit has expanded accessibility, especially for those in rural areas and others who face socioeconomic barriers while transporting to a clinic physically, as it enables them to complete the entire process from home. Moreover, the Supreme Court’s decision could further restrict abortion access for residents in the states with the most stringent abortion bans. Some telemedicine clinics have permitted U.S.-based doctors to prescribe and mail pills to these restricted states, relying on “shield laws” in several liberal states to protect doctors from legal repercussions.

Numerous advocates for abortion rights have stated their resolve to continue sending abortion pills through the mail, regardless of the Supreme Court’s ruling in this case. Some are prepared to transition to a misoprostol-only protocol, which uses only the second drug in the current two-step regimen. While this alternative is highly effective, it leads to significantly more cramping and bleeding. Since 56 percent of all abortions occurred after 7 weeks of pregnancy in 2021, a reduced timeframe to access abortion pills would have ramifications nationwide. 

It is critical to contemplate the tangible consequences and real-world impacts of the laws of the United States Supreme Court. Legal maneuvering may serve as a means to achieve desired ideological outcomes but should be matched with a thorough understanding of how those actions affect individuals, communities, and broader systemic structures. Considering the far-reaching implications ensures that our laws are not ideological weapons but tools that promote fairness, justice, and the equality of all. FDA v. Alliance for Hippocratic Medicine stands as a potentially landmark case that underscores the ongoing battle over reproductive rights and the broader implications of judicial decisions on access to essential healthcare. 

Maggie McGinnis is from Appleton, Wisconsin, studying Political Science Sociology, and Human Rights.

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