access to abortion medication (Anna Rose Layden/Getty Images)
Americans United last month welcomed a unanimous ruling by the U.S. Supreme Court that has the effect of protecting access to mifepristone, a drug often used in abortion care.
“Today, religious extremists suffered a setback in their quest to force all of us to live by their narrow beliefs,” said AU President and CEO Rachel Laser. “The Supreme Court’s decision to deny standing to anti-abortion activists and leave in place the FDA’s approval of mifepristone is not only a welcome victory for abortion access, but also for the separation of church and state. If America is to make good on its promise of religious freedom, each of us must be free to make our own decisions about our own bodies based on our own beliefs.”
Mifepristone is one of two drugs used to provide medication abortions, which account for over half of all abortions in the United States. The U.S. Food and Drug Administration (FDA) approved mifepristone in 2000, and since then more than five million people in the United States have used it for medication abortion and miscarriage management. Rigorous testing has shown mifepristone to be safe.
Nevertheless, an antiabortion organization called the Alliance for Hippocratic Medicine, represented by the Christian Nationalist legal group Alliance Defending Freedom, challenged the FDA’s approval of mifepristone in a case brought in the U.S. District Court for the Northern District of Texas.
Last year, U.S. District Judge Matthew Kacsmaryk, a former lawyer for another anti-separationist group and longtime anti-abortion advocate, issued an unprecedented 67-page ruling overturning the FDA’s approval and ordering mifepristone off the market.
An appeals court later curbed some of the effects of Kacsmaryk’s ruling but still permitted many restrictions on the drug. The Supreme Court subsequently stayed that ruling, allowing access to the drug to continue as it agreed to hear a full appeal of the matter.
“This mifepristone case was a textbook example of how Christian Nationalist groups manufacture these cases in an effort to strip people’s rights. Alliance Defending Freedom brought this case before a friendly judge, who previously worked for First Liberty Institute. ADF was supported by a slew of anti-abortion organizations, from Family Research Council to American Center for Law and Justice,” Laser observed.
She added, “Even as we celebrate the Supreme Court’s decision today, we know reproductive rights remain at risk across the country, thanks in large part to the ultra-conservative justices who overturned Roe v. Wade. It’s on the Project 2025 agenda to revoke FDA approval of mifepristone, among many other attacks on abortion, contraceptives, LGBTQ+ equality and democracy. We need a national recommitment to the separation of church and state. It’s the shield that protects freedom without favor and equality without exception for all of us.”
As the case wound its way through the courts, AU worked to protect access to mifepristone. Americans United joined nearly 240 reproductive rights, civil rights, religious and other social justice organizations in filing an amicus brief urging the U.S. Supreme Court to protect access to the drug. The brief stressed that more than 20 years of evidence supported the FDA’s conclusion that medication abortion with mifepristone is safe and effective. The groups asserted that the appeals court’s decision to severely restrict access to mifepristone imperiled the health and safety of millions of people.
The ruling in FDA v. Alliance for Hippocratic Medicine was based on a legal doctrine known as “standing,” that is, the right to sue. To secure standing, individuals and groups must show they are injured by a government action or policy. The high court found that the groups that sought to curtail access to mifepristone had failed to show that they were injured by its continued availability.
“Here, the plaintiff doctors and medical associations are unregulated parties who seek to challenge FDA’s regulation of others,” Justice Brett M. Kavanaugh wrote. “Specifically, FDA’s regulations apply to doctors prescribing mifepristone and to pregnant women taking mifepristone. But the plaintiff doctors and medical associations do not prescribe or use mifepristone. And FDA has not required the plaintiffs to do anything or to refrain from doing anything.”
Anti-abortion groups criticized the high court’s decision.
“Unfortunately, by not ruling on the merits and allowing this drug to remain available on procedural grounds, the court is affording more time for the abortion industry to target vulnerable mothers with these harmful chemicals,” Brent Leatherwood, president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, said in a media statement. “Preborn lives will inevitably be lost as a result. That is what makes today’s loss so heartbreaking.”