Posted: June 20, 2024
On June 13, 2024, the Supreme Court of the United States issued an opinion in a case called Food & Drug Administration v. Alliance for Hippocratic Medicine—a case dealing with access to mifepristone–that is important to disabled people. The Supreme Court held that the anti-abortion plaintiffs did not have standing to challenge the FDA’s scientifically backed actions to make mifepristone more accessible to the American public.
What is mifepristone?
Mifepristone is a prescription medication that is used to facilitate most medication abortions. It is also used to manage miscarriages. Studies show that it is extremely safe, and the FDA found that this was true even when the medication was taken without doctor supervision.
Who is the Alliance for Hippocratic Medicine?
The Alliance for Hippocratic Medicine, a plaintiff in this case, is a group of several anti-abortion organizations created by anti-abortion activists solely to limit access to abortion. These organizations were represented by the Alliance Defending Freedom, a conservative Christian legal advocacy group, which has been identified as a hate group by the Southern Poverty Law Center. The plaintiffs brought this case to prevent the American public from having access to autonomy-preserving, health-preserving, and life-saving abortion care
What was the Supreme Court case about?
The Alliance for Hippocratic Medicine sued the FDA in the U.S. District Court for the Northern District of Texas. The plaintiffs challenged the FDA’s 2000 approval of Mifeprex (the brand name version of mifepristone) for sale; the FDA’s 2019 approval of generic mifepristone for sale; and the FDA’s 2016 and 2021 actions modifying mifepristone’s conditions of use. The judge agreed with the plaintiffs and ordered mifepristone off the market.
The FDA appealed to the Court of Appeals for the Fifth Circuit. The Fifth Circuit issued an order agreeing with the lower court on some parts of the decision and disagreeing on others. The Fifth Circuit disagreed that the FDA broke the law when it approved Mifeprex and mifepristone for sale, but agreed with the lower court that the FDA should not have changed the conditions of use to make mifepristone more easily available. The FDA appealed this decision to the Supreme Court.
What did the Supreme Court decide?
The Supreme Court decided the anti-abortion organizations did not show that they were actually harmed by the FDA’s actions making mifepristone more easily available. Therefore, they could not bring this case because they did not have standing.1 Although the Supreme Court rejected this challenge to mifepristone access, the case never should have reached the Court in the first place. The lower courts’ decisions in this case were not based on facts, medicine, science, or even the law. They were politically motivated decisions by judges trying to control private decisions about people’s bodies and lives.
Why is this case important for people with disabilities?
In January 2024, DREDF, along with Women Enabled International and the law firm of Allen and Overy, LLP, wrote an amicus brief in this case in support of the FDA. The amicus brief highlighted how a Supreme Court decision reinstating outdated FDA restrictions on mifepristone would disproportionately harm disabled abortion seekers who are at much higher risk of medical complications and death during pregnancy than people without disabilities, yet face many barriers to reproductive health care. These barriers include inaccessible medical facilities, the lack of accessible medical equipment, transportation barriers, financial barriers, discriminatory policies and provider bias.
The Supreme Court’s decision in this case ensures that, for now, patients will continue to:
- Have access to mifepristone;
- Be able to attend telemedicine appointments to get prescriptions for a medication abortion pill;
- Be able to receive that prescription through the mail or by picking it up at their local pharmacy;
- Not be required to attend repetitive in-person doctor’s appointments;
- Be able to get their prescription from a nurse practitioner if a doctor is not available; and
- Get a prescription for mifepristone until they are 10 weeks pregnant instead of 7 weeks pregnant.
Will there be threats to mifepristone access in the future?
Although this decision allows access to mifepristone to continue, the Supreme Court’s opinion showed hostility to abortion access and sympathy for the concerns of the anti-abortion organizations that sued the FDA. For example, Justice Thomas’s concurrence called doctors who provide abortions “abortionists,” a derogatory term used by anti-abortion extremists.2 In contrast, Justice Kavanaugh’s opinion repeatedly called the concerns of the anti-abortion groups “sincere legal, moral, ideological, and policy objections to elective abortion.”3 The Court also refused to acknowledge that mifepristone is extremely safe despite the plaintiffs’ allegations to the contrary. Instead, the Court focused on the fact that the doctors would not personally be harmed by the plaintiffs’ alleged increase in women needing care after taking mifepristone because they could raise conscience objections to providing abortion-related care.4 Put simply, the Court impliedly accepted the plaintiffs’ plainly false assertions about mifepristone being risky and unsafe.5 The Court also implied that it may issue a negative opinion in a case called Moyle v. The United States, a case dealing with emergency abortion access in situations where a person is experiencing health- or life-threatening pregnancy complications. Such a decision could put the health and lives of disabled and non-disabled people alike at risk.
What is next?
Clearly, the fight to ensure access to abortion does not end here. Abortion is health care. It is extremely safe. It protects the bodily autonomy, health, and lives of thousands of Americans every year. Everyone should have access to timely, affordable, accessible abortion care, no matter their race, financial background, gender, disability status, immigration status, home state, or age. Attacks like this one on abortion access as well as state abortion bans, laws criminalizing abortion, and anti-abortion stigma prevent this necessary goal from becoming reality.
Nearly two years after the Dobbs decision stripped Americans of their federal right to an abortion, DREDF remains committed to its advocacy to ensure that disabled and non-disabled people have access to a full range of reproductive choices, including abortion. This continued advocacy is necessary to protect the freedom of Americans to make decisions about their own bodies without government or judicial interference.
1. Standing is a concept that courts use to decide what cases they hear. Standing requires a person or organization bringing a case to show that they are directly harmed by the actions of the person or organization they are suing. Here, the Court found that the organizations that sued the FDA could not show that they or their members were actually harmed by the FDA’s rollback on outdated restrictions to mifepristone access. Because they could not show they were actually harmed, the Court could not hear the case.↩
2. Justice Thomas is a very conservative judge on the Supreme Court. He wrote a concurrence in this case. A concurrence is an opinion that a justice writes when they agree with the main decision in the case, but they want to talk about their own views on the case. Sometimes they will talk about things that the main decision does not talk about. Other times they will explain that they agree with the main decision, but their reasoning is different than the main decision. Justice Thomas’s concurrence explains that he wants to completely throw away the concept of “organizational standing.” This is a very radical goal—it would mean that organizations like DREDF would no longer have standing to sue on behalf of the disabled people DREDF serves.↩
3. See Food & Drug Administration v. Alliance for Hippocratic Medicine, page 24↩
4. Doctors are not required to provide medical care that they do not agree with due to their religious beliefs. When a doctor refuses to provide a medical treatment, like an abortion, because they disagree with the treatment due to their religious beliefs, this is called a conscience objection. Doctors are protected from discrimination and retaliation for raising conscience objections.↩
5. Justice Kavanaugh impliedly accepted the plaintiffs’ arguments that medication abortion is unsafe by failing to correct their arguments that mifepristone is dangerous and by stating “assuming for the sake of argument that FDA’s 2016 and 2021 changes to mifepristone’s conditions of use cause more pregnant women to require emergency abortions and that some women would likely seek treatment from these plaintiff doctors—the plaintiff doctors have not shown that they could be forced to participate in an abortion or provide abortion-related medical treatment over their conscience objections.” See Food & Drug Administration v. Alliance for Hippocratic Medicine page 14.↩
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