Supreme Court Will Hear Challenge to Abortion Pill Access

WASHINGTON — The Supreme Court announced on Wednesday that it would decide on the availability of a commonly used abortion pill, the first major case involving abortion on its docket since it overturned the constitutional right to the procedure more than a year ago.

The move sets up a high-stakes fight over the drug, mifepristone, that could sharply curtail access to medication that is used in more than half of all pregnancy terminations in the United States. It could also have implications for the regulatory authority of the Food and Drug Administration, which approved the pill more than two decades ago.

The Supreme Court is now in the unusual position of ruling on abortion access even after its conservative majority declared that it would leave that question to the states. Until the court issues a decision, the FDA’s approval of the drug remains in place, delaying the potential for an abruptly limiting access to the medication.

The justices had discussed the case at their Friday conference, the private meeting among the nine.

The Supreme Court did not give a date for an oral argument in announcing it would hear two consolidated cases, FDA v. Alliance for Hippocratic Medicine, No. 23-235, and Danco Laboratories v. Alliance for Hippocratic Medicine, No. 23-236.

The Biden administration had asked the court to take up the cases involving challenges to the pill after a panel of the 5th U.S. Circuit Court of Appeals issued a decision that would curb the availability of the drug. The three-judge panel said that the pill would remain legal but with significant restrictions on patients’ access.

In its appeal, lawyers for the Justice Department described the ruling by the appeals court as unprecedented in questioning the expert judgment of the FDA. Such a decision, they added, “would threaten to severely disrupt the pharmaceutical industry and prevent FDA from fulfilling its statutory responsibilities according to its scientific judgment.”

Alliance Defending Freedom, a conservative Christian legal advocacy organization that has brought cases for clients opposed to abortion and gay and transgender rights, represents the challengers. In a brief, lawyers for the group argued that the Supreme Court did not need to weigh in, calling the appeals court decision a “modest decision” that “merely restores the common-sense safeguards under which millions of women have taken chemical abortion drugs.”

The tangled showdown over the future of the pill reflects the next major battle by conservative groups to further limit access to abortion.

The case began in November 2022, when an umbrella group of anti-abortion medical organizations and a few doctors filed a lawsuit claiming that the FDA had unlawfully approved the drug decades ago.

They filed their challenge in the Panhandle city of Amarillo, Texas, where only one federal judge hears civil lawsuits filed there, Judge Matthew J. Kacsmaryk, a Donald Trump appointee who is a longtime opponent of abortion.

In April, Kacsmaryk issued a preliminary ruling invalidating the FDA’s approval of the drug. Days later, a panel of three judges in the 5th Circuit, based in New Orleans, struck down part of his ruling, allowing the drug to remain on the market but with restrictions.

The Justice Department was among those that sought emergency relief from the Supreme Court, which temporarily paused any changes to the drug’s availability as an appeal made its way up through the lower courts.

A different three-judge panel in the 5th Circuit ruled in August that the FDA’s original approval of mifepristone should remain in place, as should its approval of a generic version in 2019.

But it rolled back regulations governing the pill, to before 2016. In the years since, the agency made changes that broadened access to the drug. Under those pre-2016 rules, mifepristone must be prescribed only by a doctor and picked up in person. Patients also had to visit a doctor three times during the abortion process.

If the appeals court’s ruling goes into effect, that would impose significant restrictions on access, barring patients from obtaining a prescription by telemedicine and from receiving it by mail.

This article originally appeared in The New York Times .