The availability of a common abortion pill will remain unchanged, the US supreme court ruled Thursday in an unanimous 9-0 decision, handing a major victory to abortion rights supporters who feared that the court that overturned Roe v Wade just two years ago would further hack away at access to the procedure.
Conservative bloc
Alito – Majority
Barrett – Majority
Gorsuch – Majority
Kavanaugh – Majority
Roberts – Majority
Thomas – Majority
Liberal bloc
Jackson – Majority
Kagan – Majority
Sotomayor – Majority
The case, a consolidation of Food and Drug Administration v Alliance for Hippocratic Medicine and Danco Laboratories LLC v Alliance for Hippocratic Medicine, dealt with the FDA’s ability to regulate mifepristone, one of two drugs typically used in medication abortions, which now make up more than 60% of all US abortions and have become a major target of anti-abortion activists. A coalition of abortion opponents had tried to persuade the supreme court to roll back a series of moves by the FDA to expand access to the drug, such as allowing abortion providers to mail mifepristone to patients – a request that the justices met with skepticism in the case’s March arguments.
The abortion opponents claimed that, if the FDA’s current regulations of mifepristone were allowed to remain, anti-abortion doctors could suffer harm if they have to treat women who experience complications from mifepristone. But in Thursday’s majority opinion, Justice Brett Kavanaugh rejected that argument, ruling that the anti-abortion activists did not prove that they had the legal right to bring the case in the first place, or standing.
“Because the plaintiffs do not prescribe, manufacture, sell, or advertise mifepristone or sponsor a competing drug, the plaintiffs suffer no direct monetary injuries from FDA’s actions relaxing regulation of mifepristone,” Kavanaugh wrote. “Nor do they suffer injuries to their property, or to the value of their property, from FDA’s actions. Because the plaintiffs do not use mifepristone, they obviously can suffer no physical injuries from FDA’s actions relaxing regulation of mifepristone.”
Instead, he said, the anti-abortion activists tried to push “several complicated causation theories” – none of which met the threshold for establishing standing.
The unanimous ruling marked a rare moment of consensus on abortion, an issue that has divided the court and the country.
Only Justice Clarence Thomas, one of the most hardline conservative justices on the court, wrote a concurring opinion that dealt primarily with the legal nuances of standing, arguing that so-called “abortionists” – a term widely seen as derogatory among abortion providers – should also lack standing to sue on behalf of their patients.
Had the abortion opponents won,the ruling could also have had consequences for every medication regulated by the FDA, including other kinds of politicized drugs such as vaccines, HIV medications and drugs used in gender-affirming healthcare.