4 Questions the US Supreme Court’s Abortion Pills Decision Didn’t Decide

Abortion pills are a potential election issue this fall and beyond.

United States Supreme Court in Washington, D.C.
United States Supreme Court in Washington, D.C. (photo: Wolfgang Schaller / Shutterstock)

The limited abortion-pill decision of the U.S. Supreme Court June 13 leaves major questions about the future of the drug unanswered, pro-life advocates contend.

The high court unanimously found in Food and Drug Administration v. Alliance for Hippocratic Medicine that the four pro-life organizations and four pro-life doctors who brought a lawsuit challenging loosened federal regulations on abortion pills lacked standing — meaning they aren’t, in the court’s view, affected enough by the federal agency’s decisions to bring the lawsuit. But the court did not rule on the merits of their case.

About 63% of all abortions in the United States in 2023 took place through abortion pills, according to the Guttmacher Institute, which supports abortion and collects information about it.

That percentage has been steadily growing in recent years and is expected to keep rising. This means that abortion policy is quickly becoming abortion-pill policy.

Here are four abortion pill issues that are still unresolved.

1. Safety challenges to abortion pills are still possible without the courts.

Supporters of abortion pills say they’re safe for the women who take them under current U.S. Food and Drug Administration (FDA) regulations, citing studies, including one published in May 2024 by The Journal of the American Medical Association. Opponents of the pills sharply disagree.

In his decision in April 2023, U.S. District Judge Matthew Kacsmaryk questioned the FDA’s data, finding that the agency evaluated the effects of abortion pills on women who took them “despite the agency’s 2016 decision to eliminate the requirement for abortionists to report non-fatal ‘adverse events.’”

“One of my concerns is that the Food and Drug Administration told hospitals and medical personnel they don’t have to report complications arising from use of the abortion pill, mifepristone — to report only if a death occurs. The FDA then turned around and claimed the pill was safe because no complications had been reported,” Carol Tobias, president of the National Right to Life Committee, told the Register by text.

The Supreme Court didn’t rule on the safety question, but said federal courts aren’t the place to decide it.

Instead, Justice Brett Kavanaugh wrote for the court, the pro-life doctors and organizations that challenged the safety of abortion pills can “present their concerns and objections to the President and FDA in the regulatory process, or to Congress and the President in the legislative process.”

In other words: Abortion pills are a potential election issue this fall and beyond.

2. Pro-life states may be able to wage abortion-pill safety challenges in court.

Three states — Missouri, Idaho and Kansas — in January intervened as plaintiffs in the abortion-pills lawsuit in U.S. District Court for the Northern District of Texas, where the pro-life doctors’ case originated.

It may be that while the doctors in the Supreme Court case couldn’t challenge the safety of the abortion pill, states might be able to do so.

“Litigation is not over in this case. These three states might have standing. It’s an issue they’re looking at in the district-court level,” said Carolyn McDonnell, litigation counsel for Americans United for Life, which opposes abortion, told the Register.

3. Legal challenges to sending abortion pills through the mail are still possible.

The FDA required abortion pills to be dispensed in person until April 2021, during the coronavirus shutdowns and not long after President Joe Biden took office, when the agency started allowing them to be sent by mail. In December 2021 that approval became permanent.

But the pro-life organizations and doctors who challenged the FDA’s loosening of regulations on abortion pills argued in federal court in Texas in November 2022 that federal law bans mailing abortion pills.

The Comstock Act of 1873 makes it illegal to mail “[e]very article, instrument, drug, medicine, or thing … for producing abortion.” The prohibition in current federal law also applies to “any express company or other common carrier.”

That led to a question from the U.S. Postal Service once, in June 2022, the Supreme Court overturned Roe v. Wade, deciding that there is no federal right to abortion: Can we keep delivering abortion pills?

In December 2022, the U.S. Department of Justice’s Office of Legal Counsel issued an opinion arguing that mailing abortion pills does not violate federal law “where the sender lacks the intent that the recipient of the drugs will use them unlawfully.”

But “sender” and “recipient” don’t appear in the federal statute, two lawyers with the Heritage Foundation, a conservative think tank, point out — which, they say, nullifies the usefulness of the Justice Department opinion.

The agency’s Office of Legal Counsel “has, therefore, effectively created a new statute, intentionally neutralizing the current one so that it poses no obstacle to the Biden Administration’s agenda of maximizing abortion access,” wrote Thomas Jipping and Sarah Perry, both senior legal fellows with the Heritage Foundation, in an article published by the think tank in February 2023.

A U.S. district judge in April 2023 found that mailing abortion pills violates the Comstock Act. In August 2023, the U.S. 5th Circuit Court of Appeals declined to rule on that question, though one appeals-court judge wrote in a concurring opinion that he agreed with the lower-court judge on that point.

The Supreme Court did not address the Comstock Act question in its decision June 13.

Since the Biden administration won’t stop allowing abortion pills to be sent through the mail, the question is moot for now — but might not be if Biden loses his reelection bid in November.

“I suspect that in a new administration this may be on the list of Department of Justice opinions that might be ripe for reconsideration, as well as deciding whether the Justice Department would enforce the Comstock Act,” Jipping said Thursday during a press briefing, responding to a question from the Register.

4. Pro-life states may seek to further regulate abortion pills.

While the FDA regulates abortion pills, it’s possible that state governments may do so, as well.

“The FDA approval process sets a regulatory floor, not a ceiling. So it determines that these particular drugs, medications, are safe to bring to market and safe for sale, but it does not — particularly in the case now that we’ve seen, in abortion — it does not prohibit states from regulating exactly to what extent they’re going to distribute or limit or criminalize the use of any particular drug,” said Sarah Perry, senior legal fellow with the Heritage Foundation, during a press briefing June 13.

“So it is a novel question, I think; we have yet to see it play out, but I do expect we’re going to see a fair level of state legislative activity now seeking to restrict access to the abortion pill,” Perry said.

One example: In Louisiana, where abortion has been illegal since August 2022, state legislators moved recently to crack down on abortion pills.

On May 24, Louisiana Gov. Jeff Landry signed into law a statute defining a crime of “coerced criminal abortion by means of fraud” applying to someone who knowingly uses “an abortion-inducing drug” to attempt to cause an abortion “on an unsuspecting pregnant mother without her knowledge or consent,” with prison sentences starting at five years.

Louisiana state Sen. Thomas Pressly, R-Shreveport, said his sister’s husband in Texas tricked her into taking abortion pills. Prosecutors in Massachusetts on May 24 brought charges in a comparable case.

Some pro-lifers say the FDA ought to answer for these cases and others like them.

“Abusers’ accessing abortion drugs online is possible because of the FDA’s actions. So we expect the FDA to be held accountable,” Katie Daniel, state policy director of Susan B. Anthony Pro-Life America, told the Register.

The new law in Louisiana defines the abortion pills mifepristone and misoprostol as controlled substances, making it illegal to possess them unless they were obtained “pursuant to a valid prescription or order from a practitioner.”

(Mifepristone blocks the hormone progesterone, which is needed for a pregnancy to continue. Misoprostol, which the National Institutes of Health says “may be employed to induce labor following intrauterine fetal demise,” has medical uses that are not connected to abortion.)

The new Louisiana law takes effect Oct. 1 — unless a court says otherwise.