Anti-abortion groups show no signs of backing off their legal fight to restrict access to abortion pills even after Thursday’s Supreme Court victory kept the pills available in 36 states.
The court’s ruling, while unanimous, was also somewhat limited. The justices agreed that anti-abortion doctors did not have legal standing to sue the Food and Drug Administration over actions it has taken in recent years making it easier to get mifepristone, one of two pills involved in a medication abortion.
That ruling does little to slow the broader movement to restrict access.
Three states plan to pursue a case in federal district court to make the pills harder to obtain. Reproductive rights lawyers also anticipate efforts on behalf of anti-abortion activists or legislators to revive a 151-year-old federal law that might prohibit sending abortion pills through the mail. Other abortion access advocates predict that a second Trump administration would lead to similar restrictions.
The “trend of pushing back against women’s health and reproductive care is not going to stop just because of this case,” said Clara Spera, senior counsel at the National Women’s Law Center.
Idaho, Kansas and Missouri intend to bring their own claims. Those states earlier this year successfully intervened in the case in federal district court in Amarillo, Texas, after the Supreme Court had already taken up the FDA’s appeal of lower court rulings that would have restricted access to the drug.
“We could see this very case in Amarillo continue via the Idaho, Missouri and Kansas attorneys general, or we may see those states bring new copycat litigation elsewhere making the same junk science attacks on mifepristone and, similarly, seeking to strip away access to mifepristone nationwide,” said Julia Kaye, a senior staff attorney at the ACLU Reproductive Freedom Project.
Whether the states can effectively take over the case from the group of anti-abortion doctors that originally sued is likely to be heavily contested. Some legal experts say that since the Supreme Court has now ruled that the original plaintiffs do not have standing, the entire lawsuit should be dismissed.
“In my opinion, if the plaintiffs do not have standing, the Texas case must end,” said Adam Unikowsky, a lawyer in Washington who has argued cases at the Supreme Court.
But Kristen Waggoner, CEO and general counsel of the Alliance Defending Freedom, the conservative Christian legal group representing the doctors who challenged the FDA, said she expects the case to continue in court.
“The states will be litigating it and we are going to continue to support the states,” she said. “So the case is by no means over.”
Waggoner pointed to two arguments that she said gives states the standing to keep pursuing the case: The first, she said, is that allowing abortion pills to be sent through the mail overrides state law. The second, she said, is that states incur economic harm by having to care for women who experience side effects of the pills.
“States are going to have to provide more help and more assistance, which is essentially taxpayer dollars and state resources, to help protect and support women in need,” she said.
Medication abortion is legal in some form in 36 states and Washington, D.C. It accounted for 63% of U.S. abortions in 2023 — up from more than half in 2020, according to data from the Guttmacher Institute, a research organization that advocates for abortion access.
The standard two-pill regimen for a medication abortion has a 0.4% risk of major complications.
Reproductive rights lawyers said they anticipate that anti-abortion groups will seek out more plaintiffs who can help bring forward new challenges against abortion pills.
“I think there’s going to be a hunt for plaintiffs that can satisfy the court’s standing requirements,” said Jill Habig, founder of Public Rights Project, a nonprofit that works with state and local governments to enforce civil rights laws.
Justice Brett Kavanaugh, in an opinion with Thursday’s decision, wrote that the anti-abortion doctors had failed to demonstrate that the FDA’s changes to mifepristone access caused them harm.
In 2016, the FDA extended the window in which mifepristone could be used to terminate pregnancies from seven weeks’ gestation to 10 weeks. And in 2021, it removed a requirement that mifepristone be dispensed in person, thereby allowing the drug to be administered via telehealth and sent by mail.
“The plaintiffs want FDA to make mifepristone more difficult for other doctors to prescribe and for pregnant women to obtain,” Kavanaugh wrote, but “a plaintiff’s desire to make a drug less available for others does not establish standing to sue.”
Reproductive rights lawyers said the Supreme Court’s opinion leaves the door open for legislators who oppose abortion to invoke the Comstock Act, a 1873 law that outlaws mailing “obscene” materials such as contraceptives and devices used for abortions.
Anti-abortion groups have pointed to the act as evidence that mailing abortion pills is illegal, but the Biden administration’s Justice Department has rejected that interpretation. Oral arguments before the Supreme Court in March discussed whether the Comstock Act was relevant to the case, but the court’s opinion on Thursday did not address it.
Thursday’s decision “says nothing about the future viability of using the Comstock Act to limit abortion medication in the future,” Habig said.
A possibly bigger threat to mifepristone access would be posed not by litigation, but by former President Donald Trump being re-elected in November. Although Trump has in recent months sought to distance himself from the abortion issue, he was elected in 2016 with large support from anti-abortion conservatives. He then appointed three Supreme Court justices who helped form the majority that overturned the abortion rights landmark Roe v. Wade in 2022.
A second Trump administration could seek to roll back moves by the FDA to make mifepristone more freely available, including the decision to make it accessible by mail.
“Even if we don’t have an anti-choice Congress, but we have an anti-choice president, there will be efforts to simply revive the Comstock Act and use that to ban mifepristone,” Habig said.
Abortion rights advocates said they also anticipate that more states will try to criminalize abortion pills along the lines of what Louisiana did in May. Louisiana was the first state to pass legislation to reclassify abortion pills as Category IV controlled substances, making possession of the pills without a prescription a crime.
Habig expressed additional concern about states attempting to surveil women who order abortion pills online or through telemedicine in the future.
“We’re going to see more of those efforts to really try to prevent women in anti-abortion states from accessing the care that they need from pro-choice states,” she said.
