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A Supreme Court is considering an abortion pill case, three states are waiting in the wings

When the Supreme Court debated whether to restrict access to a commonly used abortion drug this spring, a majority of the justices seemed inclined to rule against the lawsuit, ruling that the anti-abortion doctors behind it had no legal basis to bring the case to tighten.

That was the position of the Biden administration, whose lawyer urged the justices to remove the challenge to the Food and Drug Administration’s regulation of mifepristone, which was first approved by the agency. more than 20 years ago. Attorney General Elizabeth Prelogar said anti-abortion doctors are not directly harmed by regulations that have allowed the drug to be shipped to patients. at home and use them later in pregnancy. She urged the judges to “speak up and put an end to this case.”

But a Supreme Court ruling to that effect, which could come as early as Thursday and is due by the end of the court hearing in late June or early July, is unlikely to end the legal battle over access to the drug, which is available in more countries is used. than six in ten of all abortions in the US.

That’s because the judges could leave an opening for three states — Missouri, Kansas and Idaho, each of which has a Republican attorney general — to try to quickly revive the abortion pill challenge, which has found itself at the forefront of the fight for reproductive rights in the two years since the Supreme Court’s conservative majority Roe v. Wade.

The expected push by the states to pick up where the anti-abortion doctors left off would open up a new round of litigation, keeping the controversial issue in the courts for another year or more and creating new uncertainty about the access to the drug in a year before the presidential election in which abortion is a central issue. Democrats are eager to draw attention to conservative attacks on mifepristone and other issues related to reproductive health, in hopes that this issue will galvanize abortion rights voters in November.

Now, medication abortions are responsible for at least 63 percent of pregnancy terminations nationwide – and thousands of pills flow freely through the mail to states that ban the procedure – mifepristone has become a prime target for anti-abortion advocates.

The lawsuit against the drug was filed by the Alliance for Hippocratic Medicine before federal Judge Matthew Kacsmaryk, who is the sole district court judge in his courthouse in Amarillo, Texas, and is known for his anti-abortion views.

Kacsmaryk’s 2023 ruling would have taken the drug off the market, but an appeals court reversed the decision, choosing to reverse FDA changes since 2016 that made the drug easier to access. The Biden administration and the manufacturer of mifepristone subsequently appealed this ruling to the Supreme Court.

The judges rejected a request from Missouri, Kansas and Idaho to intervene in the lawsuit. But Kacsmaryk had already done that separately allowed them to join the lawsuit as plaintiffs in district court. That means if the Supreme Court sends the case back to Texas and says the anti-abortion doctors don’t have standing, the states can quickly try to prosecute the case. revive the lawsuit.

Greer Donley, a law professor at the University of Pittsburgh who closely follows lawsuits related to the pills, said abortion rights advocates should prepare for what could be a “2.0 of this case,” with Kacsmaryk considering upcoming opinions and dissents from the Supreme Court can use to help him. formulate a decision that would be more persuasive to the Supreme Court.

During oral arguments in late March, a majority of justices from across the ideological spectrum seemed doubtful whether the anti-abortion doctors, who do not prescribe mifepristone, had suffered the kind of direct harm that would give them legal grounds to sue.

Judge Neil M. Gorsuch, a nominee of President Donald Trump, and Judge Ketanji Brown Jackson, a nominee of President Biden, emphasized that the Supreme Court often says its rulings must address the specific harm alleged and not go beyond that.

The toughest questions for the Biden administration came from Justice Samuel A. Alito Jr., who wrote the annulled decision Roo. He expressed strong support for the idea that anyone should be able to sue the FDA – if not the group of anti-abortion doctors, then another claimant.

“Maybe what they did was completely lawful,” Alito said of the FDA’s actions. “But shouldn’t someone be able to challenge that in court? Who do you think? Who could bring that suit?’

When Prelogar said it was difficult to identify anyone, Alito continued: “So your argument is that no matter if the FDA blatantly breaks the law, if it doesn’t do what it should have done, women’s health is at risk that it’s just a shame, no one can file a lawsuit?

The FDA has repeatedly found that the medication abortion protocol, which includes mifepristone and a second drug, misoprostol, is a safe and effective alternative to surgical abortions. Leading studies have shown that the regulatory changes targeted by the lawsuit do not affect the drug’s safety or efficacy.

Medicinal abortions can also be performed using misoprostol alone. although that regimen typically causes more cramping and bleeding.

Alito and Judge Clarence Thomas seemed open during oral argument to the idea that the FDA, in deciding how to regulate mifepristone, should have taken into account the Comstock Act, long-dormant legislation from the 19th century. century that prohibits the shipment of “any drug, medicine, article, or anything designed, adapted, or intended to cause abortion.” Kacsmaryk included that concept in his decision last April, which would have removed mifepristone from the market.

Abortion rights groups say a decision has been made to enforce the Comstock Act could immediately halt the shipment of abortion pills nationwide, even in states where abortion is legal, and could also affect surgical abortions.

Abortion opponents initially sued the FDA over mifepristone in 2022, saying the agency unlawfully approved the drug and then relaxed regulations without properly reviewing safety data and potential risks to patients. The lawsuit focused in part about the FDA’s decision in 2016 to be able to use the drug up to ten weeks into pregnancy, instead of seven; allowing healthcare providers other than physicians to prescribe mifepristone; and reducing the number of in-person visits required before medication is administered from three to one. In 2021, the FDA allowed the drug to be sent directly to patients by mail without an in-person medical consultation.

Anti-abortion advocates say they will not be deterred if the Supreme Court dismisses the case after finding that the doctors involved did not suffer sufficient harm. They say they are confident other plaintiffs could have more success.

“I hope and expect that we will go back for round two,” said Kristi Hamrick, vice president of media and policy at Students for Life, one of the largest national anti-abortion groups.

The states have already argued in court cases that they should be able to challenge, in part because of what they describe as added value. public insurance costs for emergency medical care and mental health care due to complications abortion pills. Officials from Missouri and Idaho say they have separate interests in upholding the state’s strict ban on abortion, which they say is being undermined by the provision of abortion pills through the mail sent from states where the procedure is legal.

Missouri Attorney General Andrew Bailey said his state, along with Idaho and Kansas, “has an interest in protecting the health and well-being of their citizens — including the women and girls who have suffered (and will suffer) among complications resulting from the FDA’s unlawful approval of chemical abortion drugs.”

The Biden administration and drugmaker Danco say the states’ claims are as speculative as those of anti-abortion doctors because only a small percentage of women experience complications that require emergency care. Furthermore, they say the states cannot pursue this lawsuit on their own unless they have done so a more direct connection to the Texas courts, and would have to transfer or reapply at a different location for the challenge to resume.

With the states as claimants, Kacsmaryk would once again have the power to issue a nationwide order placing new restrictions on mifepristone, Donley said — though she suspects he would proceed cautiously and would be reluctant to see his decision overturned by the U.S. Court of Appeals for the 5th Circuit.

Whatever happens in court, another presidential election The government could have the final say on restrictions on mifepristone.

If Trump, the presumptive Republican nominee, were to appoint an anti-abortion advocate to head the FDA, Donley said, the agency could unilaterally decide to begin the process of re-imposing old restrictions that require an in-person consultation to clear it. drug, or that limited the approved window for using the pills.

Such a move would be highly unusual for the regulator. But anti-abortion activists have focused on that option as something they could push for with Trump in the White House.

“They don’t need court approval for a lot of these things,” Donley said.