Unpacking The Supreme Court's Mifepristone Case

Summary

All Of It — "Unpacking The Supreme Court's Mifepristone Case"

Podcast: All Of It (WNYC)
Episode Date: March 26, 2024
Host: Kusha Navadar (substituting for Alison Stewart)
Guest: Shefali Luthra, Healthcare Reporter at The 19th

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Episode Overview

This episode examines the key legal arguments and broader implications of the Supreme Court case "FDA vs. Alliance for Hippocratic Medicine," focused on the abortion medication mifepristone. Guest Shefali Luthra draws on her reporting and reaction to the morning's oral arguments, exploring what’s at stake for reproductive rights in the U.S., the legal strategies involved, and the cultural and political context shaping this pivotal case.

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Key Discussion Points & Insights

1. Understanding the Case: FDA vs. Alliance for Hippocratic Medicine

• Who is the Alliance and Their Argument
  • The Alliance for Hippocratic Medicine, formed post-Roe v. Wade's overturn, is a coalition of anti-abortion doctors aiming to expand abortion restrictions nationwide—not just in states with bans.
  • Their central argument is that mifepristone, one of two drugs used for medication abortion, was improperly approved and that the FDA’s 2016 and 2021 expansions (e.g., allowing telemedicine prescribing and for use up to 10 weeks) should be reversed.

    "They argued in this particular case that mifepristone... was improperly approved... going back to 2000 when they approved the drug for market... The court hasn't been receptive to that argument." —Shefali Luthra [03:37]

2. Why Now? The Post-Roe Context & Medication Abortion

• Persistence of Access Despite Bans
  • Despite state bans post-Roe, many still access abortions—some via travel, others through telemedicine, with doctors in states like NY mailing pills to restricted states.

    "...people are still able to access abortions... Having doctors in other states... prescribing and mailing medication abortion pills to people in a state like Texas, Oklahoma..." —Shefali Luthra [04:47]

• Medication Abortion as an “Existential Threat”
  • This resilience frustrates abortion opponents, leading to new strategies to restrict mifepristone at the national level.

3. Supreme Court Oral Arguments: A Focus on 'Standing'

• Standing as a Legal Threshold
  • The Justices, including conservatives, expressed skepticism that the Alliance had “standing”—i.e., had not proven personal harm necessary to bring the suit.

    "We saw a lot of justices, including conservatives like Neil Gorsuch, expressing some skepticism that the alliance... had standing to file this suit." —Shefali Luthra [05:57]

• Potential Dismissal
  • If plaintiffs lack standing, the case could be dismissed, a possibly positive sign for abortion rights advocates—but Supreme Court outcomes remain unpredictable.

4. Legal Pathway & The Amarillo Court

• How the Case Advanced
  • The case started in the Amarillo, TX court of Judge Matthew Kaczmarek, known for his anti-abortion rulings. Anti-abortion activists increasingly steer cases to his court for favorable outcomes.

    "...for those who are trying to restrict access... they often take their cases through Matthew Kaczmarek's court, hoping and often getting a favorable ruling." —Shefali Luthra [06:59]

5. Comstock Act Resurfaces

• Historical Law, Modern Implications
  • Attorneys cited the 1873 Comstock Act, which bans sending “obscene” items, including abortifacients, through the mail.

    "The Comstock act is still on the books. It hasn't been enforced in decades... but it's become this linchpin of the future of the anti abortion movement." —Shefali Luthra [09:54]

  • The DOJ rejects using Comstock against mifepristone, since it also treats miscarriages. However, its invocation by Justices Thomas and Alito signals possible future cases.
• Strategic Interest from the Right
  • The law is part of anti-abortion strategy documents for a potential second Trump administration.

6. What If Mifepristone Becomes Unavailable?

• Other Medication: Misoprostol
  • Misoprostol, the second drug in medication abortions, faces no current legal challenge (not FDA-approved for abortion, but widely used). Alone, it's less effective, more uncomfortable, and riskier, potentially driving more toward surgical abortions.

    "If we see a misoprostol only regimen take root in the US they are concerned about higher rates of patient hemorrhages, for instance..." —Shefali Luthra [12:13]

• Civil Disobedience
  • Some providers in shield law states may continue prescribing, potentially increasing legal risk for both clinicians and patients.

7. From States’ Rights to National Strategy

• Emboldening of the Anti-Abortion Movement
  • Far from settling the issue at the state level, overturning Roe catalyzed a push for broader, even national, restrictions.

    "There is no doubt that undoing Roe has emboldened the anti abortion movement. They got something they had been working for for 50 years and many of them are frustrated that the number of abortions in the US hasn't gone down. It's, it's actually gone up." —Shefali Luthra [14:12]

• Ongoing Legal Uncertainty
  • The Dobbs decision opened a "very large can of legal questions" likely unresolved for decades.

8. Fetal Personhood and Broader Reproductive Rights

• Personhood as Endgame
  • Alabama’s Supreme Court ruling on frozen embryos reflects the “personhood” ideology—a key goal of anti-abortion activists, targeting IVF and some contraceptives as well.

    "Fetal personhood is one of the ultimate end goals of a very large sector of the anti abortion movement." —Shefali Luthra [15:30]

9. Possible Outcomes and Political Stakes

• If the FDA Loses
  • The path forward is murky; possible actions include new studies or regulations, but there's little precedent.

    "But again, we are entering quite uncharted territory. So what the government's options would be, I think a lot of people are just guessing right now..." —Shefali Luthra [16:28]

• Election Year Dynamics
  • The current administration defends the FDA’s authority; a different executive could choose not to, or could try to enforce Comstock, making executive politics central to abortion access.

    "A Trump presidency could be far less interested in defending government agencies from anti abortion lawsuits. It could also be much more interested in enforcing the Comstock act as discussed today. And that would have really drastic implications for access to abortion." —Shefali Luthra [17:25]

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Notable Quotes & Memorable Moments

• On the anti-abortion movement’s new focus:

  "Mifepristone really does represent one of the greatest existential threats to the anti abortion movement in the year and a half since Roe v. Wade was overturned." —Shefali Luthra [04:47]

• On how legal strategies are set:

  "What we've seen in the past year and a half is... they often take their cases through Matthew Kaczmarek's court, hoping and often getting a favorable ruling." —Shefali Luthra [06:59]

• On standing and possible case dismissal:

  "...the doctors in this organization hadn't proven that they themselves had been harmed by the FDA's actions. And if they can't prove that, then they cannot pursue legal remedy through the courts." —Shefali Luthra [05:57]

• On the unresolved nature of post-Roe reproductive rights:

  "When you undo 50 years of legal precedent, it opens a very, very large can of legal questions that will probably take decades for us to resolve." —Shefali Luthra [14:12]

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Timestamps for Important Segments

• [03:37] – The Alliance for Hippocratic Medicine’s argument and court’s response
• [04:47] – Why mifepristone access is being challenged post-Roe
• [05:57] – Supreme Court Justices’ skepticism about plaintiffs’ standing
• [06:59] – Legal tactics: venue selection and the Amarillo court
• [09:54] – The Comstock Act’s history, relevance, and rising interest
• [12:13] – Consequences if mifepristone is restricted: reliance on misoprostol
• [14:12] – National ambitions of the anti-abortion movement post-Roe
• [15:30] – Fetal personhood, IVF, and contraception implications
• [16:28] – Potential government responses if FDA loses
• [17:25] – The role of the presidential election in shaping federal abortion policy

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Conclusion

This episode provides a thorough, nuanced look at the Supreme Court's mifepristone case, revealing the ongoing complexity and high stakes of reproductive rights battles in the U.S. Through Shefali Luthra’s expert analysis, listeners gain insights into legal, political, and practical realities—from the intricacies of Supreme Court standing to potential nationwide shifts in abortion access. The conversation makes clear that the landscape for reproductive rights is rapidly evolving, highly politicized, and deeply consequential for millions of Americans.

Transcript

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[Alison Stewart's Substitute Host (Kusha Navadar)]

This is all of it. I'm Kusha Navadar. Alison Stewart is on medical leave. Thanks for spending part of your Tuesday with us. I'm grateful you're here. Later in the show, we're going to talk with photographer Clifford Prince King about his new public art exhibit. We'll also speak with movie poster designer Dawn Bailey about how she created iconic movie posters for films like Dirty Dancing and Silence of the Lambs. And we'll hear some music that's been submitted to our public song project. That's next hour. Coming up, let's get things started with a conversation about women's reproductive rights and what happened this morning in the Supreme Court. Court. Earlier today, the Supreme Court heard arguments over whether to restrict access to mifepristone. You may have heard it mentioned in the NPR newscast just a couple of minutes ago. It's a medication used in nearly two thirds of all abortions nationally. And depending on what happens if the court rules against the government access to medication, abortion could be severely restricted, even in states that have taken legal steps to women's reproductive rights. Here now to talk about this is Shefali Luthra. She's the healthcare reporter for the website the 19th, and she was listening in on the court's arguments this morning. She'll tell us what she heard and lay out what's at stake. Shefali, welcome back to wnyc.

[Shefali Luthra]

Thank you so much for having me.

[Alison Stewart's Substitute Host (Kusha Navadar)]

Absolutely. So just a couple of hours ago, the court heard arguments in a case called FDA vs Alliance for Hippocratic Medicine. This is about the agency's approval of mifepristone. But who is the alliance for Hippocratic Medicine and what are they arguing?

[Shefali Luthra]

That is a great question. The alliance for Hippocratic Medicine, formed after Roe v. Wade was overturned, represents a collection of anti abortion doctors. And they really represent one of the major organizations trying to expand limitations to abortion, not only in states that already have bans, but across the country. They argued in this particular case that mifepristone, one of two medications used in medication abortions, was improperly approved. When they first filed the case in Texas, they argued that the FDA aired going back to 2000 when they approved the drug for market in the US to begin with. The court hasn't been receptive to that argument. And so instead what we heard today were arguments about 2016 and 2021, the two more recent years in which the FDA expanded approval of mifepristone, allowing it eventually to be dispensed through telemedicine so you could get a prescription from your doctor or healthcare provider on the phone or over the Internet and have the pills mailed to you.

[Alison Stewart's Substitute Host (Kusha Navadar)]

So you had mentioned the year 2000. The FDA approved mifepristone 24 years ago at this point. Why is it coming up now?

[Shefali Luthra]

That's a great question, and that's in large part because mifepristone really does represent one of the greatest existential threats to the anti abortion movement in the year and a half since Roe v. Wade was overturned. What we've seen is in states with abortion bans in particular, people are still able to access abortions, and some of that comes from traveling out of state. But some of that also comes from Having doctors in other states, states like New York, with these so called shield laws in place, meant to protect them from prosecution, and those doctors are prescribing and mailing medication, abortion pills to people in a state like Texas, like Oklahoma, like Louisiana or Mississippi. This is really frustrating for abortion opponents. They see it as undercutting the abortion bans they worked really hard to pass. And anything they can do to try and restrict access to mifepristone and ultimately medication abortion altogether would be really helpful to them in putting a stop to this.

[Alison Stewart's Substitute Host (Kusha Navadar)]

So you're saying this is about restricting access even nationally, places where the states have taken legal steps to have mail order, for instance, like you were, like you were suggesting. But what did you hear this morning? How did the justices react?

[Shefali Luthra]

It's a great question. And what we heard is from the standpoint of those arguing on behalf of the federal government, probably some of the best that they could hope for. We saw a lot of justices, including conservatives like Neil Gorsuch, expressing some skepticism that the alliance for Hippocratic Medicine had standing to file this suit. And what that means is the doctors in this organization hadn't proven that they themselves had been harmed by the FDA's actions. And if they can't prove that, then they cannot pursue legal remedy through the courts. And so if you don't have standing, this case would be dismissed. The idea that we have conservatives and liberals appearing to maybe coalesce around that is a great sign for the fda. That said, forecasting what the Supreme Court will or won't do is often a fool's errand, as we have learned time and time again.

[Alison Stewart's Substitute Host (Kusha Navadar)]

Yeah, I mean, you had mentioned that this had come up through Texas through an anti abortion judge in Amarillo. Right. How strong does this case seem? How did it get to the Supreme Court?

[Shefali Luthra]

It's a great question again. And the standing issue in particular is one where we have seen a lot of criticism kind of across the political spectrum. People do understand that ordinarily this would not be the kind of case where you would hear it in front of the Supreme Court. But the initial federal judge who heard this case, Judge Matthew Kaczmarek, is known for being very opposed to abortion, very strong connections to the anti abortion religious right movements. And as a result, what we have seen in the past year and a half is for those who are trying to restrict access not only to abortion, but to, you know, IUDs or contraception or HIV prevention pills, they often take their cases through Matthew Kaczmarek's court, hoping and often getting a favorable ruling.

[Alison Stewart's Substitute Host (Kusha Navadar)]

Got it. And you know, in later in this hour, we're going to be talking about that idea of contraceptives and how women are finding difficulty accessing the kind of care that they need. Going back to the standing element that you were talking about, it sounds like liberal and conservatives might be coalescing on this idea of demonstrating standing. On the other side of the argument, how did the FDA respond?

[Shefali Luthra]

The fda, represented by the Solicitor General, Elizabeth Prelude, came pretty aggressively to the question that standing has not been proven. And they suggested that there isn't really any group that could prove that they have been harmed by the 2016 and 2021 expansions of mifepristone. Their point was that the connections that would need to be drawn from this drug being approved and expanded for telemedicine for use at 10 weeks instead of seven weeks, connecting that to being what these physicians are, which is emergency room doctors in Texas, and saying that, well, you might someday see a patient who experienced complications from mifepristone prescribed and dispensed through this particular manner, and that that would harm you is incredibly tenuous, especially because complications from medication abortion are very, very rare. This is an incredibly safe, incredibly effective mechanism. And the idea that they would have the ability to. To prove harm just is a very tough sell. And that is the emphasis of what we heard from the FDA.

[Alison Stewart's Substitute Host (Kusha Navadar)]

You know, you talked about going back 20 years, 24 years when the FDA first approved this drug. We can go back even further talking about the Comstock act, which I know came into play here too. You wrote in an article for the 19th that this case, quote signifies something larger. It's a first stab by abortion opponents at curbing access nationwide and resurrecting the Comstock Act. So for those who aren't familiar, that's in 18, 1973 law that defined contraceptives as obscene and illicit, making it a federal offense to disseminate birth control through the mail or across state lines. So is this something that's still on the books? Explain that.

[Shefali Luthra]

The Comstock act is still on the books. It hasn't been enforced in decades, and its anti abortion provisions in particular were moot because of Roe v. Wade. But again, it's become this linchpin of the future of the anti abortion movement. They are very hopeful that because the law was never repealed and because it prohibits mailing items that would be intended to be used for an abortion, that it could be used to ban mailing of mifepristone or that it could be used for a nationwide ban. And again, this is a very new line of argumentation. It is one that the DOJ has rejected. They note that there are other things that mifepristone can be used for. It's also a drug for miscarriage management, for instance. And so you can't prove that someone mailing it is trying to, to procure or induce an abortion. That said, we did hear interest in Comstock from two justices on the Court today. They are the Court's two most conservative members, arguably Justice Clarence Thomas and Justice Clarence Alito. And the takeaway that I am hearing from legal experts is that this is probably not the case that would be used to bring a Comstock act across the land. But it does show that there is interest in the far right, including at the highest levels of the far right, in using this as a tool to restrict access, again, nationwide. And I should note that the Comstock act and using it to restrict medication abortion in particular, is part of the documents prepared by Donald Trump's advisors. His Project 2025 articulates this as something that could be done to limit access if he were reelected president.

[Alison Stewart's Substitute Host (Kusha Navadar)]

So the Comstock act was invoked. This might not be the time at which it is fully addressed, but there is definite interest being shown. Kind of the takeaway there.

[Shefali Luthra]

Absolutely. I would be very surprised if we don't see more cases down the line trying to bring back and rebuild more legal ground to enforce Comstock.

[Alison Stewart's Substitute Host (Kusha Navadar)]

Talking more about the drugs itself and medication abortion, there are two pills being used for medication abortion in the U.S. the second is misoprostol. Are there any legal challenges to that pill? What would happen if mifepristone is struck down and women are only left with that second drug, misoprostol?

[Shefali Luthra]

A very good question. Again, misoprostol is not undergoing any legal challenges, and that's in part because technically it is not actually FDA approved for abortion, but it is used as part of the regimen. We can see a few different avenues taking place. One is that we would see more people getting medication abortions through misoprostol only, which works most of the time and is largely safe. It is often done that way in other parts of the world because methopristone is quite expensive. That said, it is less effective than the two medication combination. It is more painful, there is more bleeding. I've had doctors tell me that if we see a misoprostol only regimen take root in the US they are concerned about higher rates of patient hemorrhages, for instance, we might Also see more patients switch to surgical abortions instead, which don't require mifepristone or misoprostol. But not all clinics that provide abortions are equipped at providing surgical ones. Many only do medication. And of course you can't do medication. Excuse me, you can't do surgical abortions across state lines. Right. You can't provide those through the mail. The other thing that is worth noting is some of these doctors I mentioned earlier, the ones who are prescribing and mailing abortion pills from their shield law states like New York or Massachusetts to states like Texas or Louisiana, have expressed interest in trying to keep doing that anyway, doing what they call civil disobedience. And so we'll see how much impact this restriction has and whether it adds more legal risk to patients or providers and also at the same time whether people continue trying to resist those changes anyway.

[Alison Stewart's Substitute Host (Kusha Navadar)]

Shefali we're talking about states rights now and we have been previously in this conversation. It makes me think the court overturned Roe two years ago. And in theory, I think a lot of people thought this would return the decision to the state, state level. But it doesn't seem like it's playing out that way. So has undoing Roe emboldened the anti abortion movement?

[Shefali Luthra]

There is no doubt that undoing Roe has emboldened the anti abortion movement. They got something they had been working for for 50 years and many of them are frustrated that the number of abortions in the US hasn't gone down. It's, it's actually gone up. And they are now working knowing that they have the blessing of a judiciary that opposed a federal abortion right to try and build more restrictions across the country. We are seeing a much more aggressive, much more brazen anti abortion movement than we arguably ever have. The other thing that you mentioned, the idea that undoing Roe would send this to the states and end legal challenges. And that's something that the majority argued when they issued their opinion in Dobbs v. Jackson Women's Health Organization. And a lot of us who cover this, people who study it, people I interview all the time, had a little, maybe not chuckle, but we knew that wouldn't be the case. When you undo 50 years of legal precedent, it opens a very, very large can of legal questions that will probably take decades for us to resolve.

[Alison Stewart's Substitute Host (Kusha Navadar)]

One of the legal questions that have come up recently at the state level was the Alabama Supreme Court that recently ruled frozen embryos have the same rights as children. They employed the notion of personhood. Is that related in any way to this case.

[Shefali Luthra]

Fetal personhood is one of the ultimate end goals of a very large sector of the anti abortion movement. The same movement does oppose IVF for the reasons that came up in Alabama, the creation of embryos that aren't used to become pregnancies. They also oppose the use of IUDs. They oppose certain forms of contraception such as the morning after pill. If we do see, and if we are talking about this more emboldened anti abortion movement, one of the things they are ultimately hoping for and working in pursuit of is fetal personhood. And we even see after Alabama, despite the backlash to the restrictions on ivf, which have been ameliorated for now, states are still working to pass and enact fetal personhood laws. We can look at Iowa, this first state to pass one after the Alabama decision.

[Alison Stewart's Substitute Host (Kusha Navadar)]

So let's go back to this case here. If the FDA loses today's case, what are the agency's options?

[Shefali Luthra]

That is a really good question. The White House was asked this very question yesterday. What they would be considering if there was an adverse ruling to the fda, to Mythopressitone. They didn't give a lot of insight and in some ways we don't really know because there is so little precedent for this. One thing I've heard from some folks is maybe they could try to launch a really large new study of the virtues and the scientific merits of mailing mifepristone and providers could maybe participate in that study. But again, we are entering quite uncharted territory. So what the government's options would be, I think a lot of people are just guessing right now, and it makes.

[Alison Stewart's Substitute Host (Kusha Navadar)]

Me think about this year being in an election year. Is there anything the Biden administration may do to preserve access? Or is there something, let's say hypothetically, Trump, as the front runner for the Republican Party, could do to limit it from the executive branch.

[Shefali Luthra]

Frankly, one really significant element is just that they are defending the FDA to begin with. The government doesn't have to do that. And you may recall that when Donald Trump was elected last time, we saw a change in how the federal government did or did not defend certain positions that had been taken up by the Obama administration. A Trump presidency could be far less interested in defending government agencies from anti abortion lawsuits. It could also be much more interested in enforcing the Comstock act as discussed today. And that would have really drastic implications for access to abortion. It's also something that we would not see from the Biden administration, given their interest and their campaign emphasis on protecting abortion rights and attempting to restore them.

[Alison Stewart's Substitute Host (Kusha Navadar)]

Well, my guest has been Shefali Luthra, healthcare reporter. You can read her reporting at 19. It's been very helpful having you on here, Shefali. Thanks so much.

[Shefali Luthra]

Thank you for having me.

[Alison Stewart's Substitute Host (Kusha Navadar)]

Absolutely.

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