Ethermac|Abortion advocates, opponents agree on one thing about SCOTUS ruling: The fight isn't over

Like many advocates across the country,Ethermac Julia Kaye was watching closely to see if Thursday morning would be the day the Supreme Court would dramatically curb access to the widely used abortion drug mifepristone.

Kaye, a senior staff attorney with the American Civil Liberties Union's Reproductive Freedom Project, was relieved when she learned the high court had decided unanimously to toss the challenge brought by anti-abortion doctors and maintain the status quo for medication abortion. But, Kaye warned "the battle is far from over" because the court dismissed the case on procedural grounds, rather than address whether the Food and Drug Administration had overstepped its bounds when it loosened restrictions on the drug.

"These extremist attorneys general told the Supreme Court earlier this year that even if these plaintiffs lose, the states will either try to continue this case in Texas, or else bring copycat lawsuits in other jurisdictions," Kaye said.

Anti-abortion advocates, including Mark Harrington, president of Created Equal, agreed the battle over access to abortion pills was ongoing. Some conservatives expressed disappointment about the decision, vowing they would continue the fight in the courts and the public square.

"They did not rule on the merits of the abortion pill or the FDA administration of the pill," Harrington said, the justices only ruled that the plaintiffs didn't have standing to sue.

Losing mifepristone 'would have been devastating'

Mifepristone, which was approved by the FDA nearly 25 years ago, was used in nearly two-thirds of abortions nationwide last year. The case had broad implications, and its scope was potentially farther reaching than the 2022 Dobbs ruling in terms of the states impacted. If the Supreme Court had ruled on the merits, Kaye said, access to the medication could have been stripped from people in every state, including in states where the procedure remains legal.

Kaye said the court could also have restricted access to the drug through the mail following a telehealth appointment, a format that has become a major pillar of abortion care.

"That would have been devastating, particularly for people of color, low-income patients, people living in rural areas and women in abusive households," Kaye said. "For these populations, having to pay for and arrange transportation and childcare, as well as time off work in order to travel long distances to obtain mifepristone would simply be impossible, and those patients would lose access to this essential health care altogether."

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Some abortion advocates had prepared for the contingency that the court would restrict access to the pills. Amy Hagstrom Miller, president and CEO of Whole Woman's Health, said if the court had ruled differently, she planned to continue offering medication abortion at her clinics using a different drug regimen. She said she was relieved that wouldn't be necessary.

"Now we feel like not only can we continue to provide that care without disruption, but we could look at expanding our pills by mail program into more states so that we can give access to the abortion seekers without delay and without barriers," she said.

Though the decision was good news for Kelly Baden, vice president of public policy at the Guttmacher Institute, she said it is challenging to celebrate the victories given the ongoing threats to abortion access nationwide. She noted that the Supreme Court has yet to rule in another case that will determine if doctors can provide emergency abortions in states that banned the procedure after the court overturned Roe v. Wade.

"This decision is, again, welcome within the context that we're operating in, which is that abortion is totally abandoned in 14 states, restricted in others," she said. "But keeping things status quo is not enough to make me celebrate."

SCOTUS decision is 'deeply disappointing' for abortion opponents

Mifepristone is among "the most studied medications" prescribed in the United States, and evidence supporting the drug's safety and efficacy is "overwhelming," according to an amicus brief filed in support of the FDA by the American Medical Association, the American College of Obstetricians and Gynecologists, American Academy of Family Physicians and several other organizations. Experts have said mifepristone is safer than common drugs including Tylenol and Viagra.

But anti-abortion advocates such as Andrea Trudden, vice president of communications at Heartbeat International, said that just because the case was "decided on a technicality," it does not mean the drug is safe. She said that 1 in 25 women will visit an emergency room after taking it. The FDA's label says between 2.9-4.6% of women visited the ER after taking the medication during clinical studies. Studies show major adverse reactions to the drug are "exceedingly rare," occurring in about 0.3% of cases, according to the American Medical Association.

"While the decision may not have gone the way that we were looking for, it doesn't take away the fact that mifepristone does harm women, and the FDA was unilaterally taking away and stripping away those safeguards," Trudden said.

Ingrid Skop, an OB-GYN who serves as vice president and director of medical affairs at Charlotte Lozier Institute, an anti-abortion nonprofit, called the decision "deeply disappointing."

"As a practicing OB-GYN with over 30 years’ experience, I have seen firsthand that mail-order abortion drugs harm my patients, both mothers and their unborn children," Skop said in a statement. "Abortion advocates and corporate media ignore their stories as they shamelessly promote mail-order distribution of dangerous drugs without a single in-person doctor visit."

What's next for abortion access?

Kaye, from the ACLU, warned that despite the court's ruling, the threats to mifepristone and abortion access overall are not likely to end with this ruling. She said the ACLU will closely monitor new state laws restricting mifepristone, such as the law in Louisiana that reclassifies mifepristone and misoprostol as controlled substances.

Abortion access may hinge on the outcome of the 2024 election, she said, because a new administration could decide to use the 1873 Comstock Act "to not only strip away access to medication abortion through telemedicine, but in fact, to ban all abortion nationwide with the stroke of a pen, without even needing any Congressional action."

David Cohen, a professor of law at Drexel University, agreed, calling the Comstock Act "the number one issue facing abortion in this country right now." He said that though Thursday's decision "is a huge win" for abortion access, it's likely that more legal challenges will follow.

"It's an endless battle, right?" he said. "This battle will never end, no matter who wins in any one particular moment."

Contributing: Maureen Groppe and Christine Fernando, USA TODAY