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The Abortion Pill Lawsuit at the Supreme Court

Anti-abortion extremists are yet again manipulating the courts to attack abortion access – and our reproductive freedoms are yet again in the hands of Trump’s hand-picked Supreme Court. The Court will hear oral arguments on March 26th, 2024 for FDA v. Alliance for Hippocratic Medicine and Danco Laboratories, L.L.C. v. Alliance for Hippocratic Medicine -- a politically-motivated challenge over FDA approval of mifepristone (MIFF-uh-PRISS-tone) . Mifepristone is one of the pills used in medication abortion – which is the most commonly-used method of abortion in the U.S. The case is funded and litigated by anti-abortion zealots pushing completely bogus legal and medical claims to try to end abortion access nationwide. 

This factsheet explains:

Any ruling against medication abortion could threaten access across the country, including in states where abortion is otherwise legal. But the potential impact goes far beyond abortion: This case puts at risk the FDA’s decision-making authority and evidence-based policymaking at all federal agencies. We shouldn’t have to worry that the Supreme Court will follow the science and the law to uphold our health and rights. Read on to learn more about the case and how you can make your voice heard.

  • Key Facts

    • Key Facts About Abortion and This Case

    • Abortion is safe and essential health care that 1 in 4 women and many trans and non-binary individuals will access in their lifetime.
    • 53% of abortions in the U.S. are performed via medication abortion using a combination of two drugs, one of which – mifepristone – is at issue in this case (the other drug in the combination, misoprostol, is not being directly targeted – yet).
    • Mifepristone has been used by over 5 million people to safely end their pregnancies since it was first approved by the FDA in 2000 and continues to have a well-documented, robust safety record. It is also prescribed to treat miscarriages.
    • This lawsuit is a meritless, politically-motivated attempt to replace science and medicine with extremist ideology.
  • Background

    • Background

    MAGA Republicans spent decades rigging the courts so they could overturn Roe v. Wade, but they didn’t stop there – the GOP is onto the next phase of their crusade to use the courts to abolish abortion access nationwide. Less than six months after SCOTUS overturned Roe, anti-abortion extremists filed a lawsuit asking a federal judge to order the FDA to rescind its approval of mifepristone. They intentionally filed their case before a virulently anti-abortion district court judge – Matthew J. Kacsmaryk – who in April 2023 issued a decision attempting to block the FDA’s approval of the pill, invoking a long-irrelevant 1873 anti-obscenity law called the Comstock Act and perpetuating the extremist lie that mifepristone is unsafe.

    The decision was appealed, and the case has been making its way through GOP-controlled courts. The Supreme Court granted the Biden Administration’s request to preserve the status quo while SCOTUS considers the case, allowing mifepristone to remain legal and available for now. (Remember, it’s safe and effective regardless of what courts say!)

    SCOTUS will hear oral arguments on March 26, with a decision expected before the Court’s term ends in June. 

    What’s the Comstock Act and why does it matter?

    In the late 1800s, a puritanical creep named Anthony Comstock decided that the mere existence of things he considered immoral – like abortion, birth control, sexual health information, even nudity in public art – must be outlawed. At his urging, Congress passed the Comstock Act in 1873, giving the U.S. Post Office the authority to inspect mail for any “obscene, lewd, lascivious, indecent, filthy, or vile article, matter, thing, device, or substance”, including items used for birth control or abortion, and prosecute those found to have sent such items. Thousands of people were prosecuted and more Comstock Laws were passed, but over time enforcement dwindled as courts repeatedly declared the restrictions unconstitutional. 

    Congress later repealed the prohibition on mailing birth control, but the rest of the Comstock Act is still on the books – and anti-abortion activists are trying to get the courts to use this zombie law to attack abortion. And they’re not just trying to block mailing abortion pills: Medical supplies and equipment for performing abortions also get shipped through the mail, so invoking the Comstock Act could constitute a near-total ban on abortion in the U.S. A second Trump Administration’s DOJ would aggressively enforce the Comstock Act against abortion regardless of how SCOTUS rules in this case.

  • What’s at Stake

    • What’s at Stake

    Abortion access.

    Any ruling against mifepristone will make it harder to access medication abortion (the most popular method) and could entirely end access nationwide depending on how the Court rules. Abortion is already banned or inaccessible in huge swaths of the country, forcing a spiraling human rights crisis with countless abortion seekers being denied or hindered from accessing essential care – especially people who already face disproportionate barriers to care including BIPOC, LGBTQ+, low-income, rural, and young folks. 

    FDA authority to regulate drugs, including birth control.

    Mifepristone has a 20+ year, comprehensive track record of safety that cannot be wiped away just because MAGA judges don’t like abortion. Overturning FDA decisions that were based on science and evidence could create tremendous uncertainty for the regulatory process and put every approved medication in the political crosshairs, including birth control and HIV medications.

    Integrity of the courts.

    The case at hand is completely meritless. It has only reached SCOTUS because of a coordinated effort to pack the court with extreme ideologues hand-picked by Republicans and their dark money backers to further the MAGA agenda. These MAGA pawns in black robes know their attacks on abortion are too unpopular to pass through the legislative process, so instead, they use their gavels to rip away our rights and call it justice. The Supreme Court has lost all legitimacy, and any ruling against mifepristone only underscores the dire need to unrig this corrupt institution through meaningful structural changes, including expanding the Court. 

  • Take Action

    • Take Action

    Our federal courts have been hijacked by partisan extremists. This should be an open-and-shut case to rule in favor of science, yet the Supreme Court can no longer be trusted as a fair arbiter of the law and Constitution. Here’s what you can do:

    Call on Congress to unrig the courts by passing the Judiciary Act and the Supreme Court Ethics, Recusal, and Transparency Act (SCERT).

    • The Judiciary Act would expand the Supreme Court to 13 justices – adding four seats to better protect our constitutional and civil rights 
    • SCERT creates meaningful ethical guidelines for SCOTUS and holds corrupt justices accountable through a binding code of conduct (think: Justices wouldn’t be able to accept lavish gifts from people who bring business before the Court). 

    Find your local Indivisible group and get connected with them now.

    Local groups are made up of neighbors in your community who are as committed to fighting for reproductive rights as you are. Some members have been organizing for years, and others wouldn’t have even described themselves as activists before joining their group. Whatever experience you bring, and however much or little time you have to lend, your local Indivisible group is ready and excited to have your join in!