What The Abortion Pill Supreme Court Case Could Mean For Healthcare

Almost two years after the Supreme Court overturned the landmark 1973 Roe V. Wade that federally protected abortion rights and left it up to individual states to decide, another case pertaining to reproductive rights is being heard in America’s highest court starting on March 26, 2024. A decision may not happen until June.

The latest case brought by a group of anti-abortion doctors, Alliance for Hippocratic Medicine V. FDA, is challenging access to the abortion pill known as mifepristone, which has been deemed safe by the FDA since 2000 and was later approved for use from seven to up to 10 weeks of pregnancy without requiring an in-office visit. This removed barriers for those who were unable to see an in-person medical provider, as it allowed people to access abortion pills through telemedicine and in the mail. Medication abortions now account for the majority of abortions in the U.S. This current case could impact people in all states, including where abortion procedures are protected.

What Is Mifepristone?

“Five million women in the U.S. have used this medication,” says Sophia Yen, MD, MPH, co-founder and chief medical officer of Pandia Health and clinical associate professor in the Division of Adolescent Medicine at Stanford Medical School. “The FDA approved it. Mifepristone is safer than Viagra, penicillin, and Tylenol. This is an opportunity to educate people that when we say abortion pill, it actually is abortion pills. It takes two different pills to administer the optimum standard of care, mifepristone and misoprostol. You could use misoprostol alone to have an abortion, but it’s subpar. Leave medicine to the physicians. If you don’t want mifepristone for you and your family, don’t use it. But if I want mifepristone and my doctor feels that’s the best and safest standard of care, then it is wrong to have a perfectly good drug that has served five million U.S. women to date and remove access.”

Mifepristone works by blocking progesterone, a hormone that’s needed to maintain a pregnancy, and is typically taken in the first 10 weeks of pregnancy. It is followed by the second medication misoprostol, which causes cramping to empty out the uterus.

The Abortion Pill Case Background

Anti-abortion rights groups and anti-abortion doctors sued the FDA in 2022 for approving the use of mifepristone. A federal judge who ruled to suspend the FDA’s approval of the drug cited two studies that have now been retracted in his decision. A federal appeals court overturned parts of the ruling that challenged the approval of mifepristone by the FDA in general, and instead focused on restricting people’s ability to receive the medication by mail.

“This case to me feels like more of a wild card than Dobbs,” says Caitlin Meyers, professor of economics at Middlebury College who led the economists’ amicus brief in Dobbs V. Jackson Women’s Health. “The ruling could go several ways. First of all, it is possible that [the court] could change nothing. Or they could decide to roll back the approvals of telehealth abortion, which would be a bombshell because telehealth abortion has become so important. This would not only impact virtual-only providers, but also the 40% of brick-and-mortar providers who provide medication-only abortions at their clinics. It would impact providers who are offering abortions under shield laws. Doing so would send a ton of patients flooding to the providers that offer procedural abortions, which require different appointment guidelines, and often different personnel and training. These providers would not be able to easily pivot to absorb this incredible influx of patients. Basically, anything that rolls back the regulations around mifepristone to earlier eras where it’s less available; it’s going to impact abortion access in all states, including more liberal states.”

While Meyers reiterates that it is possible to provide a medication abortion with only misoprostol, the other drug in the abortion pill combination, she says it’s not clear how many providers would want to offer that, and how many patients would be comfortable with that route.

“One thing that is at the back of my mind, and I’m not claiming it’s super likely at all, but a piece of this case concerned the Comstock Act from the 19th century, which, among other things, prohibits the distribution of drugs and devices used for abortions across state lines,” says Meyers. “It doesn’t look like the Supreme Court is considering it, but if the Court decided to apply the Comstock Act in this case, that would effectively be a national abortion ban.”

One recent reproductive healthcare ruling by the Alabama Supreme Court that said frozen embryos should be considered people applied another 19th century law created before the existence of IVF known as the Wrongful Death of a Minor Act. Alabama Gov. Kay Ivey later passed legislation protecting IVF providers from liability for embryo loss or damage during treatment.

What Else Is At Stake With The Abortion Pill Case

It’s unprecedented for the courts to challenge the FDA’s authority when it comes to evaluating drug safety. “This case has the potential to challenge the credibility and tarnish the FDA in the eyes of the people, and it is ridiculous that politicians would have the final say over scientists and doctors in terms of medical safety,” says Dr. Yen. “Also, there are drug companies that are very concerned about a potential precedent being set where anyone could challenge a drug because of potential consequences rather than proving real harm.”

If the Court did rule to roll back access to abortion medication, the impact of that decision would expand into wider economics, says Meyers.

“The more reduced access to medical abortion is, the greater number of people who get affected,” says Meyers. “It could create larger financial inequities as we’re likely to see impacts on low-income families in particular. Many of these people seeking abortions already have children, and many of them are already in financially vulnerable, precarious situations. Having a child is a moment in somebody’s life that can be really financially difficult, because of lost work, lack of paid leave, and childcare being very expensive, as well as just being down and out for the period around the birth. There would be economic impacts.”

Elle Kotopoulos, administrator at the Pilgrim Medical Center in Montclair, New Jersey, sees the real-world impact on women seeking abortion care every day in the clinic.

“Since the reversal of Roe, our landscape has definitely changed,” says Kotopoulos, who says she grew up watching her father, an ob-gyn who provided abortion care, go to work in bullet-proof vests and have to close his facility early at times due to anthrax powder deliveries. “The type of patient and amount of patients we’re seeing is different. Out-of-state patients have definitely increased. We are a state-licensed facility, and so a lot of Medicaid patients come to us who are in need of financial assistance. We want to be able to help these women make the choices that they need to make, because it is stressful when they are having more children that they cannot financially afford. You’re talking about increasing the level of poverty. If the right is taken away about their ability to choose whether or not they can have these children, more children are going to go into the already-strained foster care system. It’s a humanitarian issue.”

Kotopoulos says the protesters outside the facility are definitely more emboldened, but she is also seeing an increased level of support they didn’t have before as well as an increase of escorts helping people seeking care to get safely inside the facility. She points to misinformation on social media being a big challenge, as well as navigating the different and shifting abortion laws in various states.

“Having the support of the government would absolutely be necessary to streamline information as opposed to having each state be able to do what they want, because it makes it that much harder,” says Kotopoulos. “I think we should follow in the steps of France, who codified the right to an abortion in their constitution after watching Roe V. Wade being overturned in the U.S.”

Ruth Leitman, director of the new documentary film, “No One Asked You,” that follows comedian, writer and activist Lizz Winstead as she travels across the country to clinics to reduce abortion stigma, says, “It boggles my mind how little we talk about abortion as an economic issue and as a health care issue, and how it has become so politicized. I also think people are still failing to clearly connect the dots between the [abortion] issue and gender equity issues.”

Reproductive rights rulings can have ripple effects on rulings pertaining to other issues. “When you look at what’s happened around abortion access in all of these states, you’re seeing similar things about LGBTQ rights,” says Leitman. “I think it’s really about taking back our power, and it’s going to take everyone. The comics that we have in the film are not all cis white women. There are several trans comics, and there’s that deep connection between and camaraderie and understanding of bodily autonomy between all groups. I think that’s really important to center the universal bodily autonomy that this film represents, because at this point, we all have to fight for each other and with each other.”