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How the mifepristone case before SCOTUS could affect abortion in Pennsylvania


How the mifepristone case before SCOTUS could affect abortion in Pennsylvania

Apr 13, 2024 | 12:14 pm ET
By Kim Lyons
How the mifepristone case before SCOTUS could affect abortion in Pennsylvania
The U.S. Supreme Court could decide the future of a key abortion pill, mifepristone, more than a year after the nation’s highest court overturned Roe v. Wade allowing states to decide their own abortion laws and bans. (Getty Images)

The U.S. Supreme Court is weighing a case that could put limits on access to mifepristone, a drug used in medication abortions.

Pennsylvania is widely considered a “safe” state for reproductive rights: Abortion is legal up to 24 weeks, and Gov. Josh Shapiro was among 21 governors who urged the U.S. Supreme Court in an amicus brief to rule in favor of access to mifepristone. 

“I believe in women’s freedom to choose – and as long as I’m Governor, I will always defend freedom in the Commonwealth of Pennsylvania,” Shapiro said in a statement in January. 

Medication abortion includes mifepristone as the first drug and misoprostol as the second. The two-drug regimen accounted for about 63% of abortions within the United States in 2023, according to a March report from the Guttmacher Institute.

And according to the Pennsylvania Department of Health, medication abortions accounted for more than half of all abortions performed in the state in 2022, the most recent year for which data was available. 

The case

Alliance Defending Freedom filed a lawsuit in November 2022, challenging the original approval of the abortion pill in 2000 as well as the changes to when and how the drug could be used that were made in 2016 and during the COVID-19 pandemic.

The lawsuit was filed on behalf of the Alliance for Hippocratic Medicine, the American Association of Pro-Life Obstetricians and Gynecologists, the American College of Pediatricians and the Christian Medical & Dental Associations as well as four doctors from California, Indiana, Michigan and Texas.

The case before SCOTUS, Food and Drug Administration (FDA)  v. Alliance for Hippocratic Medicine (AHM), seeks to revert the use of mifepristone back to what was in place before the FDA began making changes in 2016, and would potentially restrict mifepristone from being sent to patients through the mail.

US Supreme Court to decide fate of medication abortion access nationwide 

Michael Gibson, director of communications for Planned Parenthood of Western Pennsylvania, called the case “politically motivated and not in the interest of patients or providers.” He added that the case could have potential consequences for patient access to other FDA-approved medications.   

“The Mifepristone case is a baseless lawsuit, and has been instigated and funded by anti-abortion extremists to further their agenda to eliminate abortion, birth control, and other sexual and reproductive health care nationwide,” Gibson said. “Mifepristone is a safe and common drug used in medication abortions for more than 20 years, and the FDA’s authority over medication approvals should never have been challenged. “

Justices seemed skeptical

During oral arguments in March, several of the Supreme Court justices seemed to question the premise of the original lawsuit, that anti-abortion doctors would be potentially harmed by having to treat patients suffering complications from using mifepristone.

“I’m worried that there is a significant mismatch in this case between the claimed injury and the remedy that’s being sought,”Justice Ketanji Brown Jackson, appointed by President Joe Biden, said. “The obvious, common-sense remedy would be to provide them with an exemption that they don’t have to participate in this procedure.”

But, Jackson noted, the anti-abortion doctors were seeking changes in access to mifepristone for everyone in the country.

“And I guess I’m just trying to understand how they could possibly be entitled to that, given the injury that they have alleged,” Jackson said.

Erin Morrow Hawley argued on behalf of Alliance Defending Freedom and the anti-abortion doctors that conscience protections don’t go far enough.

“These are emergency situations,” Hawley said. “Respondent doctors don’t necessarily know until they scrub into that operating room whether this may or may not be abortion drug harm — it could be a miscarriage, it could be an ectopic pregnancy, or it could be an elective abortion.”

U.S. Supreme Court justices seem skeptical of limits on access to abortion medication

The justices’ questions would seem to indicate things may not tilt in favor of the AHM. 

“The oral argument before the U.S. Supreme Court in FDA v Alliance for Hippocratic Medicine revealed that most of the justices are skeptical of AHM’s standing to bring the litigation, so all signs are pointing to a ruling that will not change anything about the availability of mifepristone in Pennsylvania,” Susan J. Frietsche, Co-Executive Director of Women’s Law Project told the Capital-Star. 

If SCOTUS’ decision rolled back to the pre-2016 restrictions, mifepristone could only be administered by a doctor, not another medical practitioner. Under Pennsylvania state law, Frietsche noted, only doctors can provide abortion care, so reverting to that provision wouldn’t affect patients here. 

She added that it was unclear how the old restrictions would be enforced, however, “so it is difficult to predict whether access to mifepristone would be restricted immediately or more slowly should the Court rule against the FDA.”

The court is expected to issue its ruling in the case this summer.