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The US Supreme Court has agreed to hear a case that will decide the availability of abortion pills, teeing up another legal battle over reproductive rights that will be heard as the country prepares for its next presidential election.
The high court on Wednesday agreed to hear an appeal against lower court decisions that limited access to abortion pills containing mifepristone, which account for more than half of abortions in the US.
The decision is the latest twist in legal wrangling between anti-abortion campaigners, the Biden administration and the pharmaceutical industry over the regulatory standing of mifepristone.
It comes after the Supreme Court in 2022 shifted the reproductive rights landscape in the US by overturning Roe vs Wade, which had enshrined federal protection for abortion rights for nearly 50 years. In the wake of that ruling, conservative states have moved quickly to strip away access to abortion through a wave of restrictive regulations and laws.
The case before the high court began with a legal challenge filed in Texas federal court by a group of anti-abortion advocates alleging the US Food and Drug Administration did not properly approve the drug for terminating pregnancies, and had not considered its safety when used by girls under the age of 18.
In April, the judge hearing the case, Matthew Kacsmaryk, issued a sweeping decision that overturned regulators’ approval of mifepristone more than two decades ago, which would in effect amount to a nationwide ban on the drug. A federal appeals court subsequently granted an emergency request by the Biden administration to put that ruling on hold until a full appeal could be heard, noting in its judgment that the plaintiffs’ challenge to approval of mifepristone in 2000 may have come too late.
However, the appeals court declined to block a portion of the Texas court’s ruling that in effect reinstated restrictions on the dispensing of mifepristone that have been progressively eased by the FDA since 2016.
Danco Laboratories, the main manufacturer of abortion pills containing mifepristone, in September asked the Supreme Court to review portions of the order that had halted expanded access to the pill.
The FDA, most large healthcare associations and the pharmaceutical industry have criticised the Texas ruling, arguing that mifepristone has been safely used to terminate pregnancies for more than two decades. In court filings, Danco Laboratories said plaintiffs’ “real disagreement with FDA is that they oppose all forms of abortion”.
The case has also thrown into question US agencies’ role as standard-setters and their ability to implement regulatory powers. The plaintiffs argued the FDA had failed to comply with US laws governing agencies’ rulemaking.
But the US Department of Justice told the Supreme Court that upholding the lower courts’ decisions would “upend the regulatory regime for mifepristone, with sweeping consequences for . . . the FDA’s ability to implement its statutory authority”.
Protection for abortion rights has become a rallying cry for Democratic candidates, particularly since the decision to over-rule Roe. They have blamed the Supreme Court’s conservative justices — three of whom were appointed by Donald Trump, the former Republican president and current frontrunner for his party’s nomination in 2024 — for overturning longstanding precedent to the detriment of women across the country.
After the Supreme Court agreed to hear the case on Wednesday, President Joe Biden’s re-election campaign said in a statement: “Maga Republicans — led by Donald Trump — are marching this country toward a full-on national abortion ban, and if the Supreme Court strips away access to safe and effective medication abortion next year, it will be the latest step towards achieving that goal.”
