Two years ago, the Supreme Court made an unprecedented move where they reversed their own ruling. The newly established conservative majority ruled in the case of Dobbs v. Jackson that Women’s Health Organization states had the right to place restrictions on access to abortion, reversing the nearly five-decade old precedent established by Roe v. Wade.
It marked a shift in the world of politics, sparking fear among the majority of Americans who are now left wondering what rights the Supreme Court will go after next.
Democrats quickly organized and shifted the focus of their campaigns to highlight how Trump’s presidency allowed for the appointment of three conservative Supreme Court Justices who made the Dobbs decision possible.
However, the Dobbs decision resulted in Republicans failing to gain what was expected to be a majority in the U.S. Senate, quashing what many expected to be a “Red Wave,” as well as an increase in voter turnout from women and marginalized groups including, but not limited to, the LGBTQ+ community and communities of color.
Despite the Supreme Court’s decision to rescind the constitutional right established by Roe v. Wade, the Court recently ruled in a case where Mifepristone, a prescription given for a medicinal abortion, and its legality were called into question.
Doctors, “pro-life” activists and others testified, and ultimately, the Court ruled states couldn’t decide if a drug deemed safe by the Food and Drug Administration (FDA) would be allowed within their borders. While it may appear to be a victory for reproductive rights, when examined closely, this ruling could lay the groundwork for not only the criminalization of Mifepristone in the future, but other medications or FDA-approved treatments.
What is Mifepristone and how is it used?
The FDA approved Mifeprex (Mifepristone) in September 2000 for medical termination of pregnancy, originally only allowing its use through the first seven weeks of gestation. This was extended to ten weeks gestation in 2016 and a generic version was approved in April 2019.
Mifepristone works by blocking a hormone called progesterone, which is needed for a pregnancy to continue. Mifepristone, when used together with another medicine called misoprostol, is used to end a pregnancy in the first 10 weeks. The approved Mifepristone dosing regimen according to the FDA lasts multiple days: on day one, the person must take 200 milligrams of Mifepristone by mouth. Then 24 to 48 hours after taking Mifepristone, one must take 800 micrograms of misoprostol. Within hours of raking the misoprostol, the uterus will contract and expel all contents. About seven to fourteen days after taking Mifepristone, the patient is then required to follow-up with the health care provider.
Critics have attempted to use false or skewed information to claim Mifepristone isn’t safe, but the opposite is true. On the FDA’s FAQ page regarding the drug, Mifepristone is safe when used as indicated. The agency approved the first version of the drug over two decades ago based on a thorough and comprehensive review of scientific evidence.
The FDA also continues to periodically review Mifepristone and its approved generic, and so far, have not identified any new safety concerns with the use of Mifepristone for medical abortions.
Mifepristone in North Carolina
North Carolina barred prescriptions for Mifepristone as a part of the state’s post-Roe abortion restrictions, which stated only a licensed physician could provide the abortion drug Mifepristone. In addition, the medication has to be provided in person, requires an in-person follow up visit and requires reporting of all adverse events, including non-fatal side effects.
This June, however, a federal judge in North Carolina overruled those requirements, restoring people’s ability to take Mifepristone at home or receive the medication in the mail.
“Politicians in North Carolina cannot interfere with the FDA’s authority and impose medically unnecessary restrictions on medication abortion care,” Dr. Amy Bryant, the doctor who brought forth the lawsuit, said after the ruling.
Federal District Court Judge Catherine Eagles ruled states cannot impose specific added requirements to what the FDA has stated is safe to use.
“This case thus raises the question of whether and when a state can impose additional requirements on the distribution of an FDA-approved drug,” Eagles wrote in a previous filing. “While this case concerns the distribution of a drug used to terminate a pregnancy, a similar case could arise over any drug, from FDA-approved thyroid or diabetes medications, drugs for cancer treatment, vaccinations, contraceptives or opioids for pain management.”
Eagles added in that same filing: “The Court finds and concludes that to the extent North Carolina law imposes safety restrictions on the distribution of the drug that the FDA has implemented and then later affirmatively rejected and removed, those laws frustrate the congressional goal of establishing a comprehensive regulatory framework under which the FDA determines conditions for safe drug distribution that do not create unnecessary burdens on the health care system or patient access.”
What the Supreme Court ruling means
The Supreme Court ruling does ensure access to Mifepristone on the federal level, but it’s more complicated than it appears at first glance.
According to reporting from the Associated Press, the nine justices agreed the abortion opponents lacked the legal right to litigate against the FDA’s approval of the drug.
“It doesn’t change anything anywhere,” said David S. Cohen, a law professor at Drexel University. “Tomorrow’s the same as today, which is the same as yesterday, which is the same as before this case was filed.”
However, despite this case wrapping up, it’s possible for other lawsuits regarding Mifepristone’s legality to make their way up to the Supreme Court. According to reporting from NBC Washington, Idaho, Kansas and Missouri brought a case against the FDA, but it was ultimately thrown out by the Supreme Court. There is a chance it could be revived in lower courts, according to Temple University law professor Rachel Rebouche.
“They are not physicians who have to show that they actually have some relationship to abortion care,” Rebouche said. “They’re claiming a state interest in the regulation of medicine, so I think that’s the vehicle in which you could see a lawsuit come forward.”
The court ruling depends on state laws to ensure access to the abortion pill, and those policies are devised, voted on and implemented by elected officials.
Ultimately, it’s going to be up to voters to decide whether access to safe, at-home abortions remain. Will Americans want to elect legislative and executive officials who will implement policies to codify and guarantee access to reproductive healthcare, or will the public opt for the dystopian setting reproductive health care is heading in?