Supreme Court extends access to mifepristone, for now

Amna Nawaz:

The Supreme Court has once again extended access to the abortion pill mifepristone for now.

Late today, the justices extended a pause on a lower court ruling that would have blocked telehealth prescriptions and mail distribution of mifepristone.

To help explain what this means for people seeking the medicine and the legal fight still to come, I'm joined again by Mary Ziegler, professor at the University of California, Davis, School of Law.

So, Mary Ziegler, there's been a lot of back-and-forth. Just to clarify for folks, what does this mean for access to the abortion pill?

Mary Ziegler:

Well, at the moment, it means that access is unchanged. So it's still available on the same terms that it was before.

It just -- there's obviously some future legal uncertainty about whether that continues. But, for now, we're in the status quo.

Amna Nawaz:

So this does allow litigation in lower courts to play out. I want to note Planned Parenthood issued a statement in response to today's ruling, saying that the Supreme Court did the bare minimum with this ruling, but calling it a relief for patients seeking the pill.

What does this mean about what happens next? Could this issue end up before the Supreme Court again? And do we have any idea which way they might go?

Mary Ziegler:

I mean, the short answer is, it will inevitably end up before the Supreme Court again. This case will inevitably come back to the Supreme Court probably next year.

And there are any number of other challenges to access to mifepristone that are moving through the lower courts as well, some of which are seeking to take the drug off the market altogether, not just to block telehealth access to it.

So it's just a matter of time as to when the Supreme Court gets this case. And I think we're also quite likely to see lower courts trying to pause access potentially before the Supreme Court weighs in again. So this is just the tip of the iceberg. And that's not including the fact that we have now seen major changes at FDA with the resignation of Marty Makary.

So this is very much kind of an ongoing story, I think.

Amna Nawaz:

I want to point out Justices Clarence Thomas and Samuel Alito both wrote very strongly worded dissents in today's ruling, saying that they would have allowed the lower court ruling to go into effect.

Alito went so far as to call this a scheme to undermine the court's earlier Dobbs decision that eliminated the constitutional right to abortion. What's notable to you about those dissents?

Mary Ziegler:

Well, Justice Alito clearly is pretty frustrated by the way mifepristone access has been guaranteed by shield laws, which is noteworthy because those cases too, these clashes between the states, could end up at SCOTUS.

We -- I was also struck by the fact that Justice Clarence Thomas called the drug manufacturers who mail mifepristone a criminal enterprise because of the Comstock Act, which is another argument that we're likely to see return to the Supreme Court and one that could have ramifications for abortion access beyond just mifepristone.

So the fact that we know that there are two justices already thinking in this way is pretty important going forward.

Amna Nawaz:

And just to remind people before we let you go, Mary Ziegler, about how widely used, commonly used mifepristone is, remind us how that is.

Mary Ziegler:

So, two-thirds of all abortions in the United States involve mifepristone.

And we know that well over a quarter of all abortions involve telehealth. And that may well be an undercount, given that, of course, some of these procedures are considered illegal under this relevant state law. So, this is a significant number of Americans who'd be affected by this one way or another.

Amna Nawaz:

All right, Mary Ziegler from the University of California, Davis, School of Law, thank you for once again joining us. We appreciate your time.

Mary Ziegler:

Thanks for having me.