Supreme Court to decide whether to restrict mifepristone

The Supreme Court said Wednesday it will consider whether to restrict access to a widely used abortion drug — even in states where the procedure is still allowed.

The case concerns the drug mifepristone that — when coupled with another drug — is one of the most common abortion methods in the United States.

The decision means the conservative-leaning court will again wade into the abortion debate after overturning Roe v. Wade last year, altering the landscape of abortion rights nationwide and triggering more than half the states to outlaw or severely restrict the procedure.

Why Supreme court want restrict mifepristone?

The new case could be decided by July, inserting the Supreme Court into the middle of the presidential election, where abortion access is once again a key issue.

For now, mifepristone remains available and not subject to restrictions the lower courts have said should be imposed on its use. The high court determined in April that access to the drug would remain unchanged until the appeals process finishes.

In April 2023, federal Judge Matthew Kacsmaryk — a Trump appointee closely affiliated with the Christian right and a longtime crusader against abortion, birth control, and many forms of human sexuality — attempted to ban mifepristone by suspending its regulatory approval. The Supreme Court halted Kacsmaryk’s order and determined that the medication, which has been legal in the United States since 2000, should remain lawful while this case worked its way through the appellate process.

Technically, the Fifth Circuit’s decision did not ban mifepristone outright — it merely required the Food and Drug Administration (FDA) to unravel several changes the FDA made to the protocol health providers must use when prescribing the drug, which rolled out in 2016. As a practical matter, however, requiring health providers to return to pre-2016 protocols would prevent them from prescribing mifepristone for at least several months, because the drug’s manufacturer would need to revise its labels, recertify providers on the new, court-imposed protocol, and take other steps that cannot be completed quickly.

As the conservative Supreme Court’s April order suggests, the legal arguments against mifepristone are exceedingly weak. No federal court, including Kacsmaryk’s court, had jurisdiction to hear this case in the first place. And the law gives the FDA, and not judges, the power to decide which drugs should be available in the US.

It does so, moreover, for a very good reason. The FDA is made up of scientists and other experts in drug safety and efficacy, while the courts are made up of lawyers who rarely know anything about these subjects.

One other sign that the justices probably aren’t going to ban mifepristone is that, at the same time that the Court announced it would hear the two Alliance cases, it also denied a request by the anti-abortion plaintiffs in those cases. Those plaintiffs asked the justices to consider reinstating Kacsmaryk’s sweeping ban on mifepristone. In refusing to even consider that option, the Court effectively takes it off the table — at least for now.