In a unanimous decision by the U.S. Supreme Court, a case challenging the FDA’s approval of the drug mifepristone was dismissed, marking a huge win for upholding reproductive rights. Used in 60% of abortions, mifepristone is used with misoprostol to perform safe, at-home medication abortions, and protecting its accessibility means that individuals in need of medically necessary abortions in states in which abortions have been outlawed have an opportunity to do so safely.
Mifepristone was approved by the Food and Drug Administration in 2000, and a case filed in Texas sought to entirely reverse its approval. As years went by, the optics of the case narrowed, changing to only reverse rulings made in 2016 and 2021, in which the ways it could be used were expanded, and the decision was made to let mifepristone be prescribed through telehealth appointments, respectively. If the Supreme Court ruled in favor of the anti-abortion doctors presenting the case, mifepristone’s access would have been severely limited to only states where abortion is legal, and the new ruling would ban the ability for it to be prescribed through telehealth appointments, so that pregnant people in need of abortions in states where it is banned can’t receive the necessary medication through the mail.
In addition, in-person prescriptions would require three appointments before approval, adding another barrier for low-income individuals in abortion-ban states who can’t afford the costs of travel, childcare, taking off work, or paying for the appointments themselves. Abortion restrictions lead to much more than just physical health risks for the pregnant individual, so extreme limitations can telegraph much worse things to come.
However, there are still angles anti-abortion activists can pull. The United States currently has 14 states that have either fully banned or put extremely-thorough restrictions on abortion access. States like Louisiana have outlawed the use of medications in abortions, labeling them as dangerous controlled substances, and it’s possible that many more anti-abortion lawmakers could push this in other states.
The most prominent obstacle to full access to mifepristone and misoprostol is the Comstock Act, a law passed in 1873 that prohibited sending materials through the mail that could be used for performing abortions, or any other “indecent or immoral use.” It’s a law that hasn’t been enforced in decades, especially since it was barred from use by Roe v. Wade, but since it was never formally repealed and Roe v. Wade was overturned, the Comstock Act could be used as the groundwork to draft a federal abortion ban. This idea has already been proposed amongst advisers to Donald Trump and could be realized if he were to win the 2024 election. However, there is still hope, as the Department of Justice issued a statement in 2022 saying that mifepristone and misoprostol have uses beyond performing medication abortions, so it’s possible that the Comstock Act wouldn’t apply to their transport through the mail to states where abortion is illegal.
Although access to mifepristone and misoprostol remain unchanged as of now, the battle over medication abortions continues at the federal and state level, with the results of the upcoming election determining the trajectory of where reproductive rights might be in a few years. However, true wins are sparse and few in between, so it’s important to reflect on the progress made in maintaining rights and access to abortion, despite how aggressively others might oppose them. This ruling is a promising sign, and it isn’t wrong to feel good about it for a little while.
