Mifepristone was first approved as safe and effective by the U.S. Food and Drug Administration (FDA) more than 20 years ago. Last April, however, a Texas district court sought to block access to this medication in states across the country — a decision that had no basis in law or fact. 

Following petitions from the U.S. Department of Justice (DOJ) and branded manufacturer Danco Laboratories, and the submission of an amicus brief by GenBioPro, all describing the sweeping and devastating consequences of the lower court’s order, the U.S. Supreme Court temporarily froze its ruling. Following that pause, in August, the Fifth Circuit affirmed significant portions of the district court ruling, ordering a return to the conditions on the use of mifepristone that existed before 2016, and the Supreme Court agreed to hear the case in December.  

This case never should have reached the Supreme Court. The far-right legal movement can’t win at the ballot box – so it used the court system to try to impose its will. This litigation has no merit and the plaintiffs – who don’t even provide abortion care – shouldn’t even have standing. The Supreme Court should dismiss this case on standing because these doctors are in no way harmed by mifepristone’s FDA approval, if not rule against them on the merits. 

 

WHAT’S AT STAKE 

If the Supreme Court upholds the Fifth Circuit ruling, it would be devastating for people all over the country who need to access a safe, effective, and non-invasive FDA-approved medication. 

It could set us back to a time when people had much less access to the now most common method of abortion; when telehealth availability was not an option for patients and they had to go in to see their doctor to access the medication. 

And this case’s repercussions go far beyond abortion care —it could stifle medical innovation, threaten the authority of scientists and experts at the FDA, undermine the country’s drug approval process, and could put other approved medications in the political crosshairs.

The consequences of substituting scientific expertise with far-right extremism are incredibly dangerous to public health and should be concerning for anyone who relies on medication that might someday be restricted by the dangerous precedent that the extremists have asked the Supreme Court to set and that the Fifth Circuit has endorsed.

Any decision other than a complete rejection of the extremists’ claims would have harmful impacts and restrict access to essential care. The FDA’s medical experts and scientists should be making decisions about any medications available to people, not extremists.

 

WHO IS INVOLVED 

People Defending Progress: 

Democracy Forward represents the manufacturer of generic mifepristone, GenBioPro, in filing amicus briefs to support FDA’s defense and underscore the importance of preserving access to medication abortion. In addition, there is a broad and diverse coalition of national medical organizations, patient and provider advocacy groups, academics, former FDA commissioners, pharmaceutical companies,, former military officials and national security leaders, disability rights advocates, the faith community, municipalities around the country, local elected leaders, and members of Congress urging the court not to restrict access to this long-standing FDA-approved medication with a decades-long track record of safety and efficacy, including when accessed through telehealth. 

Extremists Attacking Democracy: 

This case was brought by extremists and is an example of judicial mischief and judge shopping. 

The Alliance for Hippocratic Medicine, a Tennessee-based organization that was incorporated in Texas a few weeks after Roe was overturned and mere months before bringing this mifepristone challenge, only exists in Texas on a piece of paper. It’s essentially a brand name that Alliance Defending Freedom used to bring this case in front of Judge Matthew Kacsmarykt. Additionally, AHM’s “coalition groups” are actually right-wing pseudo-medical groups that have been widely discredited for peddling conspiracies and pushing fake science. This is a contrived case brought by the well-known right-wing legal group Alliance Defending Freedom as the next frontier in the right’s anti-abortion campaign. The doctors aligned with AHM have never prescribed abortion medication and never will.

 

At Oral Arguments:

On March 26, the United States Supreme Court heard oral arguments in FDA v. AHM. Solicitor General Elizabeth Prelogar represented the FDA. Danco Laboratories, the branded maker of mifepristone, was represented by Jessica Ellsworth of Hogan Lovells. Erin Hawley — an attorney at the Alliance Defending Freedom, an SPLC-identified hate group — represented AHM.

During the arguments, justices questioned whether AHM had standing (i.e. whether AHM had been harmed such that it could have its case heard in court), while attorneys representing the FDA and Danco Laboratories reiterated how mifepristone is essential, lifesaving care – and the devastating impacts of restricting access to it. It was also clear from the oral arguments that extremist far-right activists are trying to revive a nearly century-old, unenforced law, known as the Comstock Act, to ban abortion – but only Justices Thomas and Alito expressed openness to that theory. Read a full summary of key points made during oral arguments here.

 

Ruling: 

On June 13, 2024, the Supreme Court ruled that the AHM does not have standing in their case. The ruling underscores the extreme nature of the rulings of the hand-picked district court and the Fifth Circuit and the danger and harmful uncertainty that ensues when special interests are improperly empowered to use the courts as their playground. While the ruling means that, today, mifepristone remains approved and accessible, access remains at risk in the case as it continues before Judge Matthew Kacsmaryk, and anti-abortion extremists pursue their campaign against the safe, effective medication.

“Today the Supreme Court ruled what we have long known: the harmful attempt to ban and restrict mifepristone access should have never been in the courts,” said Skye Perryman, President and CEO of Democracy Forward. “While we are pleased that the Court dismissed this case on standing, the case should have been dismissed long ago and not permitted to wreak havoc on people and our health care system. Despite today’s decision, this case isn’t over. Extremist Attorneys General in Idaho, Missouri, and Kansas continue to pursue this same case in front of Judge Kacsmaryk with the goal of restricting access to mifepristone. Our team will continue to oppose these dangerous attempts in courts and communities throughout the country.”

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