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Advocates see ‘temporary’ victory in abortion drug ruling

Both abortion rights supporters and opponents say fight over mifepristone isn't over despite ruling

Activists protest at the Supreme Court as the justices hear oral arguments in the Food and Drug Administration v. Alliance for Hippocratic Medicine case on March 26.
Activists protest at the Supreme Court as the justices hear oral arguments in the Food and Drug Administration v. Alliance for Hippocratic Medicine case on March 26. (Bill Clark/CQ Roll Call)

MOORHEAD, Minn. — Nearly two years after the Supreme Court overturned Roe v. Wade, dramatically changing the U.S. landscape for abortion, abortion rights supporters Thursday saw a rare win from a separate high court decision.

In a unanimous opinion, the Supreme Court tossed out a challenge from a coalition of anti-abortion doctors to the federal regulation of mifepristone — an abortion drug used in more than half of medication abortions. The ruling maintains the status quo of how mifepristone can be prescribed, distributed and how far along into pregnancy it can be taken.

But unlike with earlier Supreme Court wins, instead of celebrating abortion rights, supporters expressed temporary relief.

“This ruling is a relief, FOR NOW. This was simply a procedural decision stating the doctors did not have standing,” wrote Tammi Kromenaker, director of Red River Women’s Clinic in Moorhead, Minn., in an email shortly after the decision. “It in no way affirms that SCOTUS will maintain access to Mifepristone in the future if a new case is brought before them.”

“People need to celebrate this win and then get back to the work of staying vigilant and lifting up the attacks on abortion access,” said Kromenaker, whose clinic provides abortions one day a week, largely serving North Dakota, South Dakota and Minnesota. 

Kromenaker’s sentiments were echoed by advocacy groups, medical providers and federal lawmakers who back reproductive rights. 

“Let’s be clear — today’s decision is not a win by any stretch of the imagination,” said Nourbese Flint, president of the abortion rights advocacy group All* Above All. “Two years since this same court struck down Roe v. Wade, we are no longer settling for crumbs as a pathway to liberation.” 

“This case was a near miss for the science and medicine community and it won’t be the last attack. This should be a warning to all of us: if anti-abortion operatives came this close to undermining long-standing approvals for mifepristone, what will come next?” said Haydee Morales, interim president, National Institute for Reproductive Health.

President Joe Biden, in a statement Thursday, emphasized the administration’s commitment to reproductive care and reiterated his call to Congress to vote on codifying protections under Roe.

“But let’s be clear: attacks on medication abortion are part of Republican elected officials’ extreme and dangerous agenda to ban abortion nationwide,” Biden said. “We will continue to fight to ensure that women in every state get the health care they need.”

Senate Democrats echoed Biden’s sentiment on Thursday ahead of their procedural vote on an in vitro fertilization rights bill. 

“We are not yet out of the woods,” said Senate Majority Leader Charles E. Schumer, D-N.Y., speaking on the Senate floor. “This decision should have been an obvious one.”

Senate Appropriations Chair Patty Murray, D-Wash., one of the co-sponsors of the IVF bill, warned that “No one should be lulled into complacency” based on Thursday’s ruling.

Not over yet

Abortion opponents agreed that the legal issue is far from over.

“Today’s decision is not the final judgment on the safety or effectiveness of mifepristone,” said The Heritage Foundation’s Thomas Jipping and Melanie Israel in a joint statement. “Policymakers should be on the side of women’s safety by, at a minimum, demanding that the FDA follow its own original safety guidelines.”

Senate Health, Education, Labor and Pensions Committee ranking member Bill Cassidy, R-La., criticized the ruling and urged the FDA to reinstate the original regulations for the drug. “The Court did not weigh in on the merits of the case, but the fact remains this is a high risk drug that ends the life of an unborn child,” he said.

House Labor-HHS-Education Appropriations Subcommittee Chairman Robert B. Aderholt, R-Ala., said he was disappointed in the ruling and would also call on FDA to place “strong parameters” on mifepristone.

“Until then, I remain committed to working diligently with my colleagues in Congress to protect life and protect women,” said Aderholt.

Erin Morrow Hawley, senior counsel and vice president of the Center for Life and Regulatory Practice for the Alliance for Defending Freedom, who argued the case before the Supreme Court, noted that three states — Missouri, Idaho and Kansas — have intervened in district courts, meaning courts will have an opportunity to decide standing in other legal challenges to the FDA’s regulation of the drugs.

“We expect litigation to continue, with those states making additional arguments,” she said.

She said the high court made its decision in part because the federal government acknowledged that the anti-abortion doctors in the case “do have federal conscience protections, even in emergency situations.”

“We are very hopeful that federal courts will have a chance to hold FDA accountable for removing long-standing safeguards,” she said. “We were hoping for a different ruling from the Supreme Court, but the reality is, the Supreme Court ruled on a legal technicality that was occasioned by the federal government’s about face.” 

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