Supreme Court ruling means the abortion pill is safe for now; Alito dissents

SCOTUS reversed a federal judge's previous ruling that banned mifepristone, a pill intrinsic to medication abortion

By Matthew Rozsa

Staff Writer

Published April 21, 2023 7:33PM (EDT)

Activists hold abortion rights signs and shout slogans while joining in a rally. Abortion rights activists rallied outside the US Supreme Court in Washington, DC. (Probal Rashid/LightRocket via Getty Images)
Activists hold abortion rights signs and shout slogans while joining in a rally. Abortion rights activists rallied outside the US Supreme Court in Washington, DC. (Probal Rashid/LightRocket via Getty Images)

The abortion pill will remain legal in the United States.

On Friday, the Supreme Court issued an order halting a federal judge's previous ruling that effectively banned mifepristone, a medication that is used in combination with misoprostol to induce medical abortions. The highest court's order did not offer a written majority opinion, only a dissenting one from Justice Alito, meaning at least five of the nine justices agreed with the opinion. Justice Thomas also noted that he would have denied the application for a stay on the matter. 

The landmark case was brought to the Supreme Court's desk as a direct result of their 2022 ruling in Dobbs v. Jackson, in which six Republican judges overturned the 1973 decision Roe v. Wade that had legalized abortion throughout the United States. That ruling emboldened Republican judges and other politicians to try to ban or impede access to abortion both in their states and on a national level. The mifepristone case reached the Supreme Court due to a controversial decision from Trump-appointed Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas.

"Two Trump-appointed judges... have acted in ways that dramatically disregard the legal limits on their powers and have done so for reasons that can only be regarded as ideological and even partisan."

On April 7th, Judge Kacsmaryk sided with the Alliance for Hippocratic Medicine — an organization of anti-abortion activists backed by the Christian right-wing lobbying group Alliance Defending Freedom — in its campaign to ban mifepristone. His ruling overruled the Food and Drug Administration's (FDA) approval of the drug over two decades ago. 

In overruling the regulatory authority of a federal agency —  which previously deemed mifepristone safe and effective — Kacsmaryk's decision effectively prohibited the drug nationwide. The decision prompted alarm from legal experts, who noted that individual judges do not have the authority to unilaterally ban medicine and also questioned the legal ability of the justice system to interfere with a purportedly independent federal agency. 

The Supreme Court ruling means that both the FDA's ability to approve drugs as an independent agency is maintained, and also means that medication abortions will remain accessible in states that do not have abortion bans or strict rules against them. 15 states restrict access to medication abortion, according to the Guttmacher Institute, an advocacy group. 

Justice Alito's dissent was based on the court rules regarding issuing a stay, as he did not believe the case rose to the standard required to be fast-tracked. "The applicants are not entitled to a stay because they have not shown that they are likely to suffer irreparable harm in the interim," Alito wrote. Alito clarified that his opinion was based on this procedural note, and it did "not express any view on the merits of the question whether the FDA acted lawfully in any of its actions regarding mifepristone."

Scientists and doctors overwhelmingly agree, based on hundreds of studies, that mifepristone is safe and effective as the FDA has repeatedly found. Indeed, more than half of all recent abortions performed in the United States were medication abortions, which used the combination of the two aforementioned drugs.

Legal critics also noted how Kacsmaryk's ruling eschewed scientific fact and medical terminology in favor of right-wing activist jargon. Likewise, his ruling ignored the majority of scientific studies on mifepristone; voiced a debunked conspiracy theory that the FDA had approved the drug without going through complete trials; and incorrectly stated that medical abortions are unsafe (patients need hospitalization in fewer than one percent of cases).

In response to Kacsmaryk's decision, the US Court of Appeals for the Fifth Circuit issued a contradictory ruling that pointed out, among other things, that the Alliance for Hippocratic Medicine lacked standing and that the plaintiffs' challenge to the FDA's process in 2000 was unconstitutional. A different appeals court and President Biden both took additional measures to counter Kacsmaryk, culminating in the emergency application asking that the U.S. Supreme Court rule on the case.

Outside of the legal battle, American Medical Association President Dr. Jack Resnick Jr. wrote in The New York Times about the medical community's concerns regarding Kacsmaryk's decision. Resnick wrote that the Alliance for Hippocratic Medicine had no standing because they "never prescribed the pill mifepristone" and had not provided evidence that "23 years ago the F.D.A. did not follow proper protocol in approving it as part of a two-drug regimen for abortion." He further added that the decision, if upheld, would "upend the Food and Drug Administration's drug regulatory process" and "throw our health care system into chaos in ways that extend far beyond the specific fight over mifepristone."

The Supreme Court had initially said it would announce its mifepristone decision on Wednesday, but on Tuesday announced it needed until Friday. On Friday the court waited until near the end of the day to announce its decision, prompting Vox legal correspondent Ian Millhiser (who has a law degree) to comment on Twitter, "When I was a law student, if it took me a week to figure out that a bunch of doctors who don't prescribe mifepristone don't have standing to challenge the FDA's approval of mifepristone, I would have received an F."

As Millhiser had previously observed, Kacsmaryk's decision was significant not only because it attacked women's reproductive rights, but because it continued a pattern of Republican-appointed judges making rulings for seemingly partisan reasons. Millhiser was not alone in this assessment.

"So far, I can say for sure that two Trump-appointed judges on the lower federal bench – not to comment on the three he appointed to the Supreme Court – have acted in ways that dramatically disregard the legal limits on their powers and have done so for reasons that can only be regarded as ideological and even partisan," Harvard University law professor Laurence Tribe told Salon by email when asked if there was a pattern of Trump judges being excessively partisan. "Judge Aileen Cannon in her outlandish special master rulings, and Judge Matthew Kacsmaryk in his even more outrageous mifepristone ruling. Although two points define a line in Euclid's geometry, I hesitate to generalize from the loose cannon and the even looser Kacsmaryk and am not yet ready to pronounce the existence of a provable pattern. But we're moving in that direction, and it's deeply regrettable."

Want more health and science stories in your inbox? Subscribe to Salon's weekly newsletter The Vulgar Scientist.

Kacsmaryk's decision was also controversial because of his ties to the far right Christian group which benefited from his decision. As Vanity Fair pointed out, one of the lead lawyers presenting arguments for the banning of mifepristone before Kacsmaryk was Erin Morrow Hawley, the wife of Sen. Josh Hawley, R-Mo. After Kascmaryk was nominated to his federal judgeship by President Donald Trump in 2018, but before he was confirmed, Kacsmaryk had donated $500 to Hawley, his first political donation in three years. Additionally, Kacsmaryk has come under fire for allegedly withholding requested information about his past media appearances during his confirmation process, including occasions when he stated that he opposes contraception rights.

While banning mifepristone would not have made it impossible for women to receive medical abortions, it would make the process much more painful, as Salon's Amanda Marcotte recently explained. Given Kacsmaryk's lack of a legitimate scientific or legal basis for banning the pill, Marcotte described the ruling as "sadistic."

"It's a movement rooted in a deeply sadistic urge to inflict pain on other people for having very normal, natural, and universal desires, such as the desire to have sex without making babies," Marcotte wrote. "Kacsmaryk can't turn women into what he wants them to be, which is desire-free dolls who only tolerate sex in order to procreate. But he can make them needlessly suffer for the 'sin' of being human."

By Matthew Rozsa

Matthew Rozsa is a staff writer at Salon. He received a Master's Degree in History from Rutgers-Newark in 2012 and was awarded a science journalism fellowship from the Metcalf Institute in 2022.

MORE FROM Matthew Rozsa

Related Topics ------------------------------------------

Abortion Abortion Pill Furthering Laurence Tribe Matthew Kacsmaryk Mifepristone Supreme Court