The Abortion Pill Fight Is Not Over

The Supreme Court’s decision on Thursday to dismissing one effort to curtail access to abortion pills did not eliminate the possibility that other plaintiffs would continue to mount challenges to the medication that is used in a majority of abortions in the country.

The lawsuit before the Supreme Court was rejected because the justices unanimously ruled that the plaintiffs — a group of anti-abortion doctors and organizations — did not have standing to sue because they could not show they had been harmed by the availability of abortion pills.

But the case is likely to be revived with different plaintiffs: three Republican-led states that months ago petitioned successfully to join the case at the lower court level.

Late last year, the states — Missouri, Idaho and Kansas — were granted status to be plaintiffs by Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas, an appointee of President Donald J. Trump who heard the original lawsuit and who openly opposes abortion access. When the case was accepted by the Supreme Court, the justices denied the three states’ request to intervene as plaintiffs at that level.

But anti-abortion groups say the three states will likely now return to the district court and resurrect the attempt to restrict access to the medication, mifepristone.

In a statement on Thursday, SBA Pro-Life America, an anti-abortion group said: “The case returns to district court where the pro-life states of Idaho, Kansas and Missouri are seeking to take up the challenge based on harms suffered by women in their states.”

Questions of legal standing would be different for the states than they were for the anti-abortion doctors and medical groups, who claimed that they were injured by occasionally having to treat women who came to emergency rooms after taking abortion pills. The states would say they have been harmed because the federal government’s regulations allowing access to mifepristone have flouted state restrictions on abortion access.

“I would expect the litigation to continue with those states raising different standing arguments than made by our doctors,” Erin Hawley, a lawyer who represented the anti-abortion medical plaintiffs in the Supreme Court case, said Thursday.

The decision will also fuel efforts to restrict abortion pills in other ways. One recent example involved Louisiana classifying abortion pills as Schedule IV drugs, a category of controlled substances with some potential for abuse or dependence that includes Ambien, Valium and Xanax, among others. The categorization is contrary to medical evidence, and because Louisiana already bans most abortions, abortion rights activists and legal scholars said that in practice, the measure might not prevent many abortions among Louisiana women.

But on a political level, the new law in Louisiana supports the claim by critics that abortion pills are dangerous. And abortion-rights supporters say that such laws can create confusion among patients about what access is available to them, which might deter some from seeking abortions.

On the abortion rights side, the Supreme Court decision will likely embolden efforts to provide abortion access for women in the states with bans and restrictions. These include telemedicine abortion services, which continue to grow and have helped make medication the method used for nearly two-thirds of abortions in the United States.

There will also likely be greater use of shield laws, which allow doctors and abortion providers in states where it is legal to prescribe and mail pills to women in states with bans and restrictions, without requiring the women to travel out of state. Such laws have been enacted in seven states so far.