U.S. Supreme Court ruling on abortion pill could 'tie the hands of every state'

The U.S. Supreme Court is set to decide the fate of a pill essential for medical abortions. Access to mifepristone, once called the “pill of Cain” by the Vatican, may be heavily restricted across all states if the highest court upholds a lower-court ruling limiting access to the drug. Expert on abortion pills Dr. Sydney Calkin speaks to FRANCE 24 about what’s at stake.

The ruling on mifepristone is the most important abortion case to reach the US Supreme Court since it struck down on Roe vs Wade in June 2022, overturning the constitutional right to end a pregnancy.

Taking mifepristone in combination with another pill called misoprostol is the most effective way to have a medication abortion. And medication abortions account for more than half of all pregnancy terminations in the US.

On Wednesday, justices agreed they would make a decision on the restrictions on mifepristone set out in a ruling made by a three-judge panel of the New Orleans-based 5th Circuit Court of Appeals. The case stems from an earlier ruling by a conservative US District Court judge in Texas that would have banned mifepristone, but all restrictions have been frozen since late April.

If these restrictions are passed, pregnant people would only have seven weeks instead of ten to use the pill. Approval would also block mifepristone from being distributed by mail and would require the drug to be prescribed by a doctor, as opposed to other health care professionals like nurses or midwives.

Oral arguments on the abortion pill will be heard by the Supreme Court next year, and a decision is expected to be issued by the end of June 2024. It will come just four months before the US president election, when abortion will undoubtedly make headlines.

Until then, access to mifepristone will remain unchanged.

Dr. Sydney Calkin, a senior lecturer at Queen Mary University of London who has carried out extensive research on how abortion pills have transformed reproductive care, explains what is at stake.

Why is mifepristone being targeted in this ruling?

Dr. Sydney Calkin: The anti-abortion movement sees it as the next step after the 2022 ruling in Dobbs v. Jackson Women’s Health Organization overturned Roe and removed constitutional protections for abortion in the US.

That ruling didn’t make abortion illegal across the whole country, it just said that it’s a question for each state. What we’re seeing right now is that states can ban abortion if they want to, but they can also keep abortion if they want to. And obviously, the anti-abortion movement isn’t happy with that. They don’t want abortion to be legal anywhere in the US.

Anybody who thought that the Dobbs decision was the final word on abortion and anybody who thought it just meant states are free to do what they want, well… I think we can really see that was never the case. The Dobbs decision was just one step in the anti-abortion strategy, which counts on going much further.

Rules on what medicines are approved and how those medicines can be used are set at the federal level. If more restrictions are put on mifepristone at the federal level, that would tie the hands of every state. Even states that want to keep abortion legal.

This is really important because, before the Dobbs decision, medication abortion accounted for the majority of abortions in the US. It’s a method that’s both widely used and a lot easier for people to access.

What are the real-life consequences of restricting access to mifepristone?

If the Supreme Court passes the restrictions, the length of time the pill can be used would be reduced from ten to seven weeks. Pregnancy in the US is dated from the last menstrual period, not the date of conception. By the time somebody notices they’ve missed their period, they might already be four weeks pregnant, giving them only three weeks to carry out a medical abortion. That really narrows the window.

As it stands, there is a range of health care providers who can prescribe mifepristone. The restrictions would also limit the providers to physicians, meaning there are fewer people licensed to prescribe the drug. And there’s already a shortage of abortion providers across the country.

Under the 2016 Food and Drug Administration (FDA) revised regulations around mifepristone, it was decided that a lower dosage of the drug could be used than was previously agreed. The restrictions would remove that requirement, increasing the amount of mifepristone used and therefore making it more expensive.

The 2016 revision also allowed for people to use the pills at home and it stated that it wasn’t necessary for a patient to come back in person for a follow-up appointment with their doctor. That would be scrapped.

But most importantly, restrictions would prevent telemedicine abortion services and mail order abortion pill services from operating. In 2021, during Covid, the FDA made it easier to get the pills through the mail. Since then, many services have popped up to offer this solution in states where abortion is legal. Taking that away would really harm access.

If you live in Texas for example, you can’t just go online and order abortion pills from California or Massachusetts. It’s illegal to access medication abortion in states where abortion is illegal. But mail order and telemedicine services are really changing the landscape. Some operate out of states with shield laws for their doctors, meaning doctors are protected from prosecution if they provide abortion pills to people in states where it’s illegal. These services are really useful for people whose neighbouring state allows abortion. Someone living in Texas can drive to New Mexico and order abortion pills to a post box there and collect them later.

What solutions could people turn to?

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Access to abortion has changed so dramatically thanks to the mobility of pills. These rulings matter because they will restrict access to some extent. But in another sense, they don’t really have as much impact as the anti-abortion movement thinks they will.

The availability of medication abortion online means that governments and courts have less control over the matter than they used to, when abortion was only a surgical procedure carried out in hospitals and clinics. Now, abortion pills are available online, manufactured across the world and relatively cheap.

Of course it would be really, really grave if the Supreme Court decides to impose all these restrictions, but there are already a lot of people who are accessing pills through other channels that won’t necessarily be impacted by the ruling.

People in the US get medication abortion pills from international organisations like Aid Access, which is affiliated with the Dutch group Women on Web. They get pills from online pharmacies. A group called Plan C in the US do a lot of work to look for those pharmacies and provide information about the price, reliability and speed by which the pills can be delivered. Cross-border networks between the US and Mexico have become more formalised.

Regardless of this case, people are still going to be getting abortion pills. But there is a risk of people being criminalised for getting those pills.