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Advocates welcome Supreme Court ruling on abortion pill, but fear it’s only a ‘reprieve’

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Advocates welcome Supreme Court ruling on abortion pill, but fear it’s only a ‘reprieve’

Jun 13, 2024 | 6:20 pm ET
By Danielle J. Brown
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Advocates welcome Supreme Court ruling on abortion pill, but fear it’s only a ‘reprieve’
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Packages of mifepristone tablets, part of a two-drug regimen to induce an abortion in the first trimester of pregnancy, shown at a family planning clinic in Rockville in 2023. Photo illustration by Anna Moneymaker/Getty Images.

Reproductive rights advocates were cautiously celebrating Thursday’s Supreme Court ruling that preserves access to the abortion drug, mifepristone, but said they fear it is only a reprieve until more challenges arise.

Sharon Blugis, executive director of the abortion-rights advocacy group Reproductive Justice Maryland, said that she was “shocked” to see the unanimous decision from the conservative-leaning Supreme Court, especially after the court reversed federal abortion protections under Roe v. Wade in 2022.

“I was doubtful … That’s how jaded I’ve become” Blugis said. “I’m shocked that it came back unanimous and in our favor.”

But she and other abortion advocates in Maryland expect Thursday’s ruling is just a chance to catch a breath before other legal challenges arise to threaten access to mifepristone or other abortion services.

“It’s not over … it’s just a reprieve. We cannot let up for a second,” Blugis said. “They struck this down because they didn’t have standing, so they’ll just wait until they have a case where they think somebody has some kind of case … I anticipate we will see this again.”

Maryland Right to Life, an anti-abortion organization, did not immediately respond to a request Thursday for comment on the opinion.

Mifepristone is a Food and Drug Administration-approved pharmaceutical that’s part of a two-drug regimen used for both medication abortions and miscarriage care. A 2022 study published by the Guttmacher Institute reported that medication abortions accounted for 54% of all abortions in the United States.

A group of physicians and anti-abortion organizations sued to overturn wanted the Supreme Court to overturn changes the FDA began making in 2016 that made it easier for the drug to be prescribed and taken. A federal district court in Texas agreed and that ruling was partially upheld by the 5th U.S. Circuit Court of Appeals.

But a unanimous Supreme Court rejected the case Thursday, ruling that the plaintiffs did not have standing to sue because the could not show that they had suffered, or were likely to suffer, injury as a result of the FDA’s regulations.

“Plaintiffs are pro-life, oppose elective abortion, and have sincere legal, moral, ideological, and policy objections to mifepristone being prescribed and used by others,”  Associate Justice Brett Kavanaugh wrote for the court, using italics for emphasis.

“Because plaintiffs do not prescribe or use mifepristone, plaintiffs are unregulated parties who seek to challenge FDA’s regulation of others. Plaintiffs advance several complicated causation theories to connect FDA’s actions to the plaintiffs’ alleged injuries in fact. None of these theories suffices to establish … standing,” Kavanaugh wrote.

The ruling means that mifepristone will remain available to those seeking an medical abortion in Maryland for now, although it may still be a challenge in states with harsher abortion restrictions.

But this is likely not the last case that will try to restrict access to mifepristone, said Robyn S. Elliott, lobbyist with Public Policy Partners.

“It appears as though we just got a reprieve from the potential impact … for access in Maryland and other states. It doesn’t mean it’s over,” Elliott said.

“We will have to read that opinion in great detail to understand where the next case will likely come from, because we will be seeing future litigation,” she said.

Maryland Attorney General Anthony Brown (D) several other pro-abortion attorneys general submitted a “friend of the court” brief in February defending mifepristone’s safety. Brown agreed Thursday that there will probably be more legal battles on access reproductive care and abortion.

“While this battle is won, we know that there are challenges looming that could threaten the reproductive freedoms we cherish here in Maryland,” Brown said in a written statement Thursday.

Blugis said that there are efforts to further restrict abortion access through other avenues outside of the Supreme Court system, such as in state legislatures and through acts of Congress. Reproductive Justice Maryland will be urging Marylanders to vote in the upcoming general election to further their efforts of protecting abortion access in the state.

“This one court case does not really reverse any of that. Everything is still at stake,” Blugis said. “This is a nice little reprieve, but that’s about all it is.”

Ruling’s effect in Maryland’s Senate race

The issue of abortion has caused another wrinkle in the competitive race for Maryland’s available U.S. Senate seat, as former Republican Gov. Larry Hogan attempts to convince the state’s voters that he will protect Roe-era abortion protections if he is elected to congress.

According to his campaign team, Hogan is pleased to by the Supreme Court’s decision to throw out the mifepristone case.

“Governor Hogan is glad to see the Supreme Court uphold a woman’s right to make our own health care decisions — just like he did as Governor for eight years,” Hogan campaign spokeswoman Blake Kernen said in an email Thursday.

Last month, Hogan bucked the national Republican playbook by saying that he supports access to abortion up to 26 weeks, despite his previous declarations that he is personally pro-life.

But Maryland Democrats have called Hogan’s record on abortion into question. Prince George’s County Executive Angela Alsobrooks, his Democratic opponent in the U.S. Senate race, in May urged voters not to “trust” his promise. on abortion.

As govenor in 2022, Hogan vetoed a measure that would have expand abortion access in the state. When the legislature overrode his veto, Hogan withheld state funding that would have been used to train nonphysicians to perform abortions, funding that Gov. Wes Moore (D) released on his first day in office in 2023.

Alsobrooks was quick to announce her support for the Supreme Court decision Thursday morning.

“It was correct that the Supreme Court made the decision to keep this single right intact – women’s access to this particular reproductive medication,” Alsobrooks said in a statement Thursday morning. “But I, like so many women across this country, shouldn’t have to wait with baited breath to see if Justices will allow us to make our own health care decisions.”