The Federal Future of Medication Abortion

Abstract

A majority of Americans believe that there should be a right to abortion, at least in some cases. Yet a vocal and determined minority has its sights set on a complete ban on all abortions everywhere in the United States. In many states, these anti-abortion activists have achieved their goal through new laws and limitations enacted in the wake of the Supreme Court’s 2022 decision in Dobbs. Anti-abortion advocates are also challenging the Food and Drug Administration’s regulatory approval of mifepristone, one of the drugs used in medication abortion (also known as medical abortion). The FDA had initially approved mifepristone in 2000. During the COVID-19 pandemic, the FDA also relaxed various dispensing requirements and permitted the medication to be prescribed via telemedicine and delivered by mail. In August 2023, the Fifth Circuit ruled in Alliance for Hippocratic Medicine v. FDA that challenges to mifepristone’s approval were likely time-barred, but that access to the medication should be restricted to those who make in-person visits to a doctor, among other limitations. The case will be appealed to the United States Supreme Court This Article makes three contributions to the national conversation about reproductive rights. First, it evaluates the arguments raised by both sides in Alliance for Hippocratic Medicine. Second, it recommends that mifepristone’s defenders focus on standing arguments if they wish to maintain the status quo. Third, the Article predicts that even if mifepristone’s defenders could persuasively argue that the plaintiffs were not entitled to rely on associational standing, there will be future plaintiffs with standing who are willing to take their place. In a future case, the Court might well find that challenges to the FDA’s initial approval of mifepristone are time-barred, but that the agency unlawfully relaxed dispensing and other requirements. It is almost certain that access to mifepristone will be restricted in the foreseeable future.