U.S. Supreme Court to hear abortion drug case that could impact common pregnancy termination in Minnesota

WASHINGTON — The latest front in the abortion wars is the legal battle at the U.S. Supreme Court over a pill that is used in medication abortions.

Although Minnesota has enshrined the right to abortion into state law, the high court’s decision on the fate of the drug called mifepristone could impact the most popular way a pregnancy is terminated in the state.   

Like anything that has to do with abortion, the case — one of the most important the Supreme Court will hear this year — has split Minnesota lawmakers along party lines and become acutely politicized.  

The court will hear arguments next Tuesday on a lawsuit that centers on the Federal Drug Administration’s approval in 2000 of mifepristone, one of two drugs currently dispensed during medication abortions, which are now available during the first 10 weeks of pregnancy in most states and 11 weeks of pregnancy in Minnesota.

Medication abortions account for more than 60% of abortions in Minnesota and usually involve taking mifepristone and another drug called misoprostol 24 to 48 hours apart. The first drug stops the development of a pregnancy and the second causes contractions and bleeding like those caused by a miscarriage.

The legal wrangling over mifepristone began last year, when a federal judge in Texas banned the drug, saying that the FDA underreported adverse reactions and the drug is unsafe.

But, in a separate case, the district court in Washington state ruled that mifepristone should remain broadly available. The conflicting opinions set the stage for appeals that eventually made their way to the U.S. Supreme Court.

The Texas case, which was brought by an umbrella group of five anti-abortion organizations called the Alliance for Hippocratic Medicine, was referred to the New Orleans-based 5th Circuit Court of Appeals.

That court did not ban mifepristone, but it rolled back some of the FDA’s  easing of regulations on the use of the drug that occurred after its initial approval in 2000.

Those relaxations included pushing the original deadline of seven weeks of pregnancy to 10 weeks and — in a move that was implemented during the pandemic — allowing the drug to be prescribed through telemedicine, instead of administered in a doctor’s office, and for the pills to be sent through the mail.

The 5th Circuit’s new restrictions on the use of mifepristone were put on hold until the U.S. Supreme Court decides the FDA’s challenge to that decision.

The politics of the abortion pill

If mifepristone is taken off the market, the state’s leading reproductive health clinics say medication abortions in Minnesota would continue but would only involve misoprostol.

Sen. Tina Smith, D-Minn., said the two drugs have been used in tandem for decades and “it’s better for women to have them together.”

Smith, a former vice president of Planned Parenthood-Minnesota, is a fierce advocate for abortion rights. But she has plenty of company among fellow Democrats when it comes to mifepristone.

All of Minnesota’s Democratic members of the U.S. House — Reps. Angie Craig, Dean Phillips, Ilhan Omar and Betty McCollum — joined Smith, Sen. Amy Klobuchar and about 250 other congressional Democrats in filing an amicus, or friend of the court, brief in defense of the FDA.

“The Fifth Circuit’s decision threatens the congressionally mandated drug approval process and poses a serious health risk to pregnant individuals by making abortion more difficult to access — when access has already been seriously eroded in the aftermath of Dobbs v. Jackson Women’s Health Organization,” the lawmakers wrote, citing the Supreme Court’s decision that overturned Roe v. Wade.

And 17 DFL members of Minnesota’s Legislature, including Senate Majority Leader Erin Murphy, joined hundreds of Democratic lawmakers from other states in filing their own amicus brief. It said the 5th Circuit decision undermines state legislators’ authority over abortion, an authority given the states by the Supreme Court when it issued the Dobbs decision.

Minneapolis City Attorney Kristin Anderson, St. Paul City Attorney Lyndsey Olson and Kimberly Wilburn, a councilmember from Minnetonka, also signed on to a brief filed by local officials across the country in support of the broad availability of mifepristone.

They said the abortion pill was needed “in furtherance of our shared interest in and responsibility for protecting the health and safety of our diverse populations, including preserving access to essential healthcare such as reproductive healthcare.”

But Minnesota’s GOP members of Congress, with the notable exception of Rep. Tom Emmer, R-6th District, have a widely different view.

Reps. Brad Finstad, Pete Stauber and Michelle Fischbach joined other GOP colleagues in submitting their own amicus brief, which argued mifepristone is unsafe.

“The FDA’s unlawful deregulation of chemical abortion drugs has endangered patient health and safety,” the Republican lawmakers wrote.

Emmer’s office did not respond to questions about his position on the issue.   But as House Majority Whip, Emmer did try to persuade fellow House Republicans to support a rider that would ban the abortion pill in a bill that would fund the FDA. The GOP conference remained split on the issue, however.

Meanwhile, Smith said mifepristone has been proven to be “safer than Tylenol,” and that banning or placing restrictions on the dispensing of mifepristone would set a dangerous precedent.

“Judges who are neither scientists nor doctors would be the ones deciding whether a drug is safe,” she said.

Laura Hermer, a professor at the Mitchell-Hamline School of Law who specializes in reproductive rights, predicted the U.S. Supreme Court will be disinclined to shift that authority from the FDA to the nation’s courts, despite the high court’s conservative tilt.

“Think what would happen if we could just question any FDA decision,” she said. “I don’t think we want to open that door more widely.”

Future injury to doctors?

While several issues will be raised during next week’s oral arguments in Food and Drug Administration v. Alliance for Hippocratic Medicine, much of the discussion is expected to center on whether the alliance had standing, or the right to bring the suit against the FDA.

To have standing, plaintiffs have to prove they have been harmed, or will be harmed, by a defendant and the injury could be redressed by court action.

Attorneys representing the FDA are expected to argue that the alliance and the doctors who have joined the organization in the lawsuit are not regulated by the FDA and do not prescribe mifepristone and that any potential injury to those physicians is speculative.

“It’s entirely possible that the U.S. Supreme Court could decide that (the alliance) lacks standing; there is good ground to make that decision,” Hermer said.

The alliance is expected to argue it has standing to bring the case because it
has been forced to spend resources on educating the public on the risks of medication abortion, and that in the future women who suffer complications to medication abortions will seek treatment from the physicians who joined the alliance.

The alliance is also expected to argue that the Comstock Act should prohibit the mailing of mifepristone prescriptions, which were allowed after the FDA removed the in-person dispensing requirement for the drug.

The Comstock Act prohibits the mailing of “obscene, lewd or lascivious” material and any article or thing “intended for the prevention of conception or procuring of abortion.”

“While I would be surprised if the Supreme Court reached the issue, there is the possibility that it may consider whether mifepristone may be sent through the mail,” Hermer said.

The U.S. Supreme Court is expected to issue a decision on the case this summer.

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