Supreme Court to assess crucial reproductive rights lawsuit

Today, the Supreme Court announced it will review its first case involving reproductive rights since the fall of Roe v. Wade in the summer of 2022. The case involves how the pill mifepristone, which is involved in 53% of abortions, would be distributed in states that restrict reproductive rights. 

The highest court in the land came into the picture after the Biden administration challenged a ruling by the Fifth US Circuit Court of Appeals in August, which limited how, when, where and why a patient could access the drug. The three-judge panel was responding to an even earlier ruling by a Texas judge who revoked the drug’s standing with the Food and Drug Administration (FDA) on the grounds that mifepristone was unsafe. 

The judge in question, Matthew Kacsmaryk, was appointed by former President Donald Trump and makes his anti-abortion stance public. Lawyers for the Alliance for Hippocratic Medicine (AHM), the anti-abortion group that brought the original suit seem to have specifically filed in Amarillo, Texas to tip the scale of “justice” in their favor. The group is represented by the far-right Alliance Defending Freedom, an organization that engages in lawfare in service of conservative causes. 

While the conservative-led court addresses the case — which they are expected to rule on in the summer of 2024 — they will suspend the Fifth Circuit’s decision and allow mifepristone to remain on the market as-is. 

“The Supreme Court did the right thing by agreeing to review the erroneous ruling of the lower court that would drastically curtail access to medication abortion,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement responding to today’s announcement. 

“Now the question is whether the Court will do the right thing and reject the radical arguments of the Plaintiffs in what should be a clear-cut case. The Court has never invalidated a long-standing FDA approval like they are being asked to do here.” 

Should the Supreme Court rule in favor of the AHM, the consequences would be disastrous for those seeking reproductive healthcare in all 50 states — so much so that following Kacsmaryk’s intervention, Democratic strongholds in California and Washington began to “stockpile” the drug.  

Additionally, as a member of the American Medical Association pointed out, the legal precedent that allows bad-faith actors to undermine the FDA’s authority could make “drugs used to treat cancer and arthritis that can incidentally affect unexpected pregnancies, drugs to prevent or treat H.I.V., and medications aimed at providing gender-affirming care” into targets. 

“Drug companies might not want to invest in the development to begin with if that, you know, risk is that the court could just overturn the approval anyway,” Sydney Lupkin, National Public Radio’s pharmaceutical correspondent, explained as the threat of the original lawsuit loomed.  

“And the FDA, again, not wanting to be sued, might look backwards in time and do withdraws.” 

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Jamie Larson