The Federal Drug Administration’s authority to allow use of the abortion pill nationwide stands, and there’s nothing a pack of anti-abortion groups can do about it. At least, not today.
The U.S. Supreme Court issued a unanimous decision Thursday morning that upholds access to mifepristone, a medication used in more than half of abortions in the United States. The drug is available throughout the country; even in states like Arkansas where abortion is banned, women can get the drug in the mail.
A group of Texas-based anti-choice doctors and groups sued the FDA to block access to the drug, which is commonly mailed to patients and taken at home, without on-site medical care. Plaintiffs argued the drug isn’t safe, but the research they cited as proof was shoddy.
Thursday’s decision is a clear win for reproductive rights advocates, but there’s a big caveat to the good news. The court’s decision is based on procedural stuff, and the issue could come back to them in the future. The court said the plaintiffs in this particular case did not have standing to sue on this issue. Others might.
New York Times Supreme Court reporter Adam Liptak explained, “While the court ruled that doctors and medical associations opposed to abortion don’t have standing, it did not rule out the possibility that other plaintiffs — notably states — may be able to pursue challenges.”
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“If people do need access to mifepristone, they can get it. Expanding versus limiting access is a good thing for women,” Rebecca Bobrow said. A spokesperson for Arkansans for Limited Government, a group aiming to get abortion rights on the November ballot, Bobrow cautioned that there’s room for this challenge to abortion pill access to come back to life.
The FDA approved mifepristone for use in 2000, and regulations have loosened since then as more evidence mounted that the drug is safe. During the COVID-19 pandemic, the FDA relaxed rules that required an in-person doctor’s visit to get a prescription. Eventually, the FDA made that rule permanent so that mifepristone can be gotten through the mail. This was key for Arkansans and people in other states where near-total abortion bans snapped into place as soon as the Supreme Court’s 2022 Dobbs decision overturned Roe v. Wade, the 1973 case that had safeguarded the right to abortion nationwide.
Arkansas Attorney General Tim Griffin has made a fuss about mailed mifepristone, threatening a lawsuit against out-of-state medical groups offering to help women access abortion pills.
Arkansans are pushing back, with a campaign to put abortion rights on the ballot this November. The Arkansas Abortion Amendment would reestablish the right to abortion up to 18 weeks after conception, and in case of rape, incest, fatal fetal anomaly or to preserve the health of the mother. Find out more about that here.
Last week, the hyper-conservative Arkansas Family Council doxed the 79 paid canvassers scurrying to collect the 91,000 signatures from across the state that are required to make the ballot.
Conservatives celebrated a report from the Arkansas Department of Health claiming there were zero abortions in Arkansas last year. The figure is, of course, ridiculous. Who knows how many women were able to legally and confidentially procure mifepristone by mail, then manage their own abortions at home? And semantic fancy footwork is baked into Arkansas law. Removing hopeless and potentially fatal ectopic pregnancies — those where an embryo implants outside the uterus — don’t fall under the state’s official definition of abortion.
Does the removal of a dead fetus count under current Arkansas law? That’s debatable, and it has some doctors and hospitals too nervous to provide necessary medical care.
Even with Thursday’s decision in hand, abortion access is quite limited in Arkansas and many other states. Stronger protections are needed, Bobrow said. “Part of the work is making sure we are enshrining abortion rights in Arkansas going forward.”