With abortion drug case, Supreme Court could reinforce states’ rights

Hours after the U.S. Supreme Court announced on Wednesday that it would take up a major abortion pill case in the spring, the pro-abortion group Women’s March sent an email to supporters, claiming the court had gone back on its word.

“Despite saying they were sending the issue of abortion back to the states with their disastrous Dobbs decision, the Supreme Court announced today that it will decide on the availability of mifepristone, potentially limiting access to the medication used in over half of U.S. pregnancy terminations,” the email read. The case, it said, “is a direct contradiction to the court’s prior stance of leaving abortion decisions to the states.”

While many pro-abortion groups see the case as another chance for the Supreme Court to limit abortion, pro-lifers are divided about its exact implications. Some see it as a case involving complex administrative law questions that won’t affect many other ongoing abortion cases. At least one pro-life legal scholar fears that, instead of limiting access to the deadly drug, the outcome of the case could give a greenlight to the abortion pill, hindering other efforts to get courts to recognize protections for unborn babies.

The case stems from a Nov. 2022 lawsuit a group of pro-life doctors and medical associations filed against the U.S. Food and Drug Administration. In an April ruling, a district court agreed with the pro-life plaintiffs that the FDA wrongfully approved the abortion drug mifepristone in 2000. But the U.S. Court of Appeals for the 5th Circuit reversed part of the lower court’s ruling in August. It only agreed that the FDA needs to put some safety measures for distributing the drug back in place, such as a requirement for in-person visits and an earlier gestational limit for taking the abortion pill.

Due to a stay granted by the U.S. Supreme Court in April, none of these lower court rulings have taken effect. And now, the nation’s highest court is taking up the federal government’s appeal of the earlier rulings.

It’s not what the pro-life groups asked for. Alliance Defending Freedom, the legal group representing the pro-life doctors, had urged the court to either not take up the case and let the 5th Circuit’s ruling stand or reconsider the FDA’s original approval of mifepristone. But the court turned down both requests.

To Erik Baptist, ADF’s senior counsel, the court’s decision here doesn’t mean too much. “When the solicitor general of the United States asks the Supreme Court to take a case of national importance, the Supreme Court typically takes that case,” Baptist said. “And that’s exactly what happened here.” The court’s decision to take up the case only indicates that at least four justices thought they should review the case, Baptist noted. He said the team is looking forward to showing how the FDA violated the law in allowing mail-order abortions.

Teresa Collett, professor at the University of St. Thomas School of Law and director of the school’s Prolife Center, said she expects the court to use the case to double down on its position in the 2022 Dobbs v. Jackson Women’s Health Organization decision: that the abortion issue is up to the people and their elected representatives.

“I think the most likely outcome, whether we like it or not, is that … they will affirm that the FDA had the authority to do what it did but that states are free to add additional requirements on controlled substances,” said Collett, pointing to laws in certain states such as those that prohibit sending abortion pills through the mail. “And so what they will essentially be doing is doubling down on, ‘We’re returning it to the states.’”

She said a ruling like that could be bad news for pro-lifers who have filed lawsuits in pro-abortion states in an attempt to get the federal courts to recognize some limit on states’ powers to allow for and even promote abortion. One of these lawsuits, filed last month in Michigan, attempts to chip away at Proposal 3, the ballot measure that introduced a new constitutional right to abortion in Michigan. It argues state lawmakers have an interest in protecting unborn human life and that unborn babies have an interest in living that the U.S. Constitution’s guarantee of equal protection in the 14th Amendment protects.

But William Wagner, one of the attorneys representing the pro-life plaintiffs in the Michigan case, disagreed that the mifepristone case could hinder these arguments. He said while the Michigan case asks whether Proposal 3 violates the U.S. Constitution, the mifepristone case focuses on the question of whether the FDA went beyond its own authority in changing the rules for distributing the abortion pill.

Carolyn McDonnell, litigation counsel at Americans United for Life, had a similar take. “The court is delving into a complex administrative law case,” she said in an email. “The personhood issue goes beyond these administrative law questions and presents an entirely different issue.”

She acknowledged that, depending on how the court rules, pro-abortion groups could try to use the decision to deny the personhood of unborn children. But she said the court is unlikely to delve into this issue. “And even if it did, anything the court says on personhood would be ‘dicta,’ which means lower courts don’t need to follow that part of the decision,” McDonnell said. While she doesn’t think the court’s decision will affect cases like the Michigan lawsuit, she said a decision could affect other litigation related to chemical abortion or even cases involving other administrative actions unrelated to abortion.

Collett, of the University of St. Thomas School of Law, acknowledged that the case is complex, touching on questions beyond the abortion issue. But she pointed to the court’s rejection of other cases that could have advanced the pro-life cause as an interesting backdrop for their acceptance of this case. Less than four months after releasing the Dobbs decision, the court turned down a case that dealt with the question of whether or not unborn babies have personhood. And earlier this month, it declined a pro-life woman’s challenge of a ban on sidewalk counseling outside of abortion facilities.

Collett is concerned that the court found the mifepristone case attractive by comparison, she said, “because it’s a way to reinforce again, ‘We mean it. States can do whatever they want.’”