The issue of abortion is back at the Supreme Court, but the case is about more than that. On Tuesday, the justices will hear arguments about the FDA's approval of the abortion medication mifepristone, and the court's decision could drastically change the drug's availability — and the FDA's authority.
Since 2000, mifepristone has been an FDA-approved drug used to induce an abortion in the early weeks of pregnancy. After reviewing usage and safety data, the FDA updated the guidelines in 2016 and again in 2021. In 2016, the FDA started allowing doctors to prescribe it up to 10 weeks into a pregnancy, and then in 2021 the agency removed the in-person requirement. That opened the door to telehealth appointments, allowing patients to receive mifepristone in the mail, and allowing pharmacies to fill a doctor's prescription for the drug. The availability of mifepristone is also subject to state regulations.
The Alliance for Hippocratic Medicine opposes abortion access and filed a lawsuit to block mifepristone from the market. The group argues in its filing with the Supreme Court that the "FDA removed key safeguards it originally thought necessary to ensure mifepristone's safe use."
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The FDA says medical evidence and studies prove the safety and effectiveness of using mifepristone under the updated guidelines, but lower courts sided with the Alliance. Opponents of those rulings from the district and appeals courts argue this case isn't just about mifepristone, but that it's also about judges undermining the scientific expertise of the FDA.
"I would like to see a clear statement that, you know, best case scenario, FDA is the scientific arbiter here and their evaluation really shouldn't be second-guessed in the courts. That's not, that's not the court's job," said Eva Temkin, the chair of FDA practice at the Paul Hastings law firm.
Tuesday's case before the Supreme Court is considering a preliminary injunction, not a final ruling from the lower courts — so depending on how the justices rule, this case could be far from over.
"We've started in district court on a preliminary injunction, we've gone up to the 5th Circuit, and now we're up in the Supreme Court. And we've already done this ping pong with the stay motions and the emergency proceedings. And depending on what the Supreme Court says, We may just be kind of looping around back to the district court for further consideration," said Temkin.
The Supreme Court put a hold on the lower courts' injunctions; so for now, mifepristone can be used up to 10 weeks into a pregnancy, and without needing an in-person appointment, if state laws are in agreement. But that could change when the high court rules this time around. That opinion will come down sometime in the next three months.
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