Mifepristone in the Court: What Future Physicians Need to Know

March 30, 2024


Mifepristone in the Court: What Future Physicians Need to Know

Written by Anna Hindman, AMSA Reproductive Health Project Fellow and 4th year medical student at Touro University California College of Osteopathic Medicine

This week, the US Supreme Court heard oral arguments regarding a challenge to severely restrict Mifepristone, a progesterone blocker that is one of two medications that has been used safely and effectively in the US and around the world for medication abortions for over 20 years.  While the news has been relatively positive and hopeful that the Justices will not further restrict access YET, the fight is unfortunately far from over. 

For years, the FDA’s stringent restrictions on mifepristone, driven by politics and not evidence based medicine, have posed significant barriers to access for individuals seeking abortion care, particularly those in underserved communities. FDA’s Risk Evaluation and Mitigation Strategy (REMS) required Mifepristone to only be dispensed in-person at a clinic, hospital, or medical office by a certified clinician, preventing mifepristone from being dispensed at pharmacies and via telehealth. The FDA expanded access to mifepristone in two key cases: one in 2016 that increased its usage from 7 weeks gestation to 10 weeks gestation and the second in 2021, fueled by the devastating COVID-19 pandemic and long standing evidence showing mifepristone’s safety, removed the in-person dispensing requirement and added a requirement that pharmacies can become certified to dispense the drug. 

These two changes by the FDA are what is being challenged during this week’s oral arguments. The Court’s final decision is expected at the end of  June 2024. 

An important warning from legal experts involves the crazy and truly antiquated Comstock Act, an act that was made law in 1873 that “made it illegal to send obscene, lewd or lascivious, “immoral,” or “indecent” publications through the mail. The law also made it a misdemeanor for anyone to sell, give away, or possess an obscene book, pamphlet, picture, drawing, or advertisement.” This included birth control, abortion pills, and abortion instruments. While this seems like something that should be illegal, this Act was mentioned multiple times in this week’s Mifepristone hearing, including as a “Prominent Provision” by Justices Samuel Alito and Clarence Thomas.

The Podcast Strict Scrutiny’s Constitutional Law Professors – Leah Litman, Kate Shaw and Melissa Murray –  have an important message for voters in this very important presidential election this year:  “it seems like the Justices are deferring a lot of their fire power for after the [2024 Presidential] election and Republican Candidates and supporters are down for it because I think they would actually like to keep this whole Comstock curious issue under wraps so that most of us in the electorate won’t understand that one of the biggest issues in the upcoming election isn’t whether or not there is going to be a republican congress that can pass a nationwide ban [on abortion] but rather whether they can sneak in a republican president with a new attorney general who is ready and prepared to revive this zombie law from 1873 [Comstock Act] and begin enforcing it against individuals providing abortion or distributing medication or even implements used for abortion and again they can do all of this without ever getting congress.” 

Click here for more resources on analysis of the US Supreme Court Hearing on Mifepristone in our weekly newsletter, click below to find action and skill-building opportunities with the ASA Repro Health Project.  

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