Abortion Pills Aren’t Going Away

Tuesday’s Supreme Court arguments proved just how futile the attempt to ban mifepristone pills will be.

Illustration of a Mife/Miso '24 poster
Even several of the conservative justices on the Court seemed skeptical of getting rid of mifepristone access entirely. Carolina Zelaya/Austen Risolvato/Rewire News Group illustration

This piece first appeared in our weekly newsletter, The Fallout.

Reading too much into Supreme Court oral arguments is always risky, but after Tuesday’s oral arguments in FDA v. Alliance for Hippocratic Medicine, it really seems as if the conservative legal movement’s most brazen and political attack on medication abortion may have hit a snag.

Despite a well-orchestrated legal campaign against the Food and Drug Administration and “chemical abortion” brought by Erin Hawley and Alliance Defending Freedom, there’s a decent chance the justices decide that the anti-abortion doctors and dentists don’t have enough legal standing to bring this challenge now. I’m using cautious optimism here.

What was clear Tuesday, both outside the Court and inside during arguments, is that no matter how the Court rules in this case, abortion pills—and especially pills by mail—are here to stay.

For a little over an hour, advocates and the justices wrestled with questions around legal standing, causation, and whether to resurrect the Comstock Act in response to FDA efforts to make medication abortion more accessible in the United States. What was left unsaid, however, was that pills by mail have changed abortion access in ways the anti-choice movement and its accomplices in the federal courts will never fully undo.

Yes, the courts may succeed in shifting the legal landscape around the availability of abortion pills, but no court ruling has the power to take away access and knowledge around self-managing abortions with pills. None.

That will be an important truth to remember should the early signs from Tuesday’s arguments prove to be false and the justices ultimately rule to roll back medication abortion access. A decision isn’t expected until sometime in June.

In the meantime, the Court will take up yet another abortion rights case next month. Idaho v. United States pits Idaho’s near-total abortion ban against the federal Emergency Medical Treatment and Active Labor Act (EMTALA), which requires hospitals receiving federal Medicare funding to provide abortions as stabilizing care in a medical emergency. Rewire News Group will once again bring you everything you need to know on all our platforms.

For more on the mifepristone case, I hope you’ll tune into this week’s Boom! Lawyered for rapid analysis from my co-host Imani Gandy and me.