Supreme Court Justices Skeptical in Mifepristone Hearing, Cast Doubt on Effort to Limit Abortion Drug Access

The high court’s reticence follows almost two years after justices ended federal protections for abortion in the landmark Dobbs case

The Supreme Court’s liberal and conservative justices cast skepticism Tuesday on an effort by conservative groups to limit access to mifepristone, the widely used abortion drug, with the Biden administration’s solicitor general even taking the rare move of urging the high court not to decide on the case. 

As the counsel for the Alliance Defending Freedom, a long-running anti-abortion group, Erin Hawley, argued that easy access to the abortion medication placed a strain on physicians, Justice Amy Coney Barrett pressed her to present evidence of her claim. 

“The difficulty, to me, is that the affidavits do read more like conscience objections,” said Coney Barrett, whose appointment to the court by then-President Donald Trump in October 2020, firmly flipped the balance in favor of conservatives. Coney Barrett is one the staunchest anti-abortion members of the high court. 

After questioning the seven named plaintiffs' relevance to the case and their ability to prove injury, Justice Kagan told Senior Counsel Erin Hawley of Alliance for Defending Freedom flatly, “I don't think you have it.”  If the case isn’t dismissed, the judges will make a ruling in June. 

The drug, mifepristone blocks the effects of progesterone needed to continue a pregnancy. The FDA made the drug widely available by mail with a 2021 regulation, but the Supreme Court or a possible second Trump administration could just as easily end that access.

Medication abortion accounted for 63% of all US Abortions in 2023, an increase from 53% in 2020 according to the Guttmacher Institute. 

The issue has proved a critical wedge among Republicans, driving up support for Democrats in back-to-back elections since the high court overturned federal protections for abortion in the case of Dobbs v. Jackson Women's Health Organization. 

Abortion is taking center stage in the race for the White House, with President Joe Biden and the Democrats hammering the issue, while Trump and the Republicans continued to avoid talk of it after having been stung with back-to-back losses at the ballot box largely attributed to the new limits on abortion angering women voters. 

On a call with reporters Monday, the Biden campaign teed up today’s Supreme Court hearing, warning that the outcome of the case could foreshadow a strict national abortion ban if Trump gets back in office. 

"Make no mistake, abortion is on the ballot in 2024," said Sen. Elizabeth Warren, D-Mass., who serves as a top adviser to Biden’s re-election effort. 

Trump has danced around the issue of abortion throughout his third White House run, initially saying that it was a loser for Republicans and cautioning against talking too much about it. But recently, as Trump has courted Christian Right groups in an effort to win over more ground troops and financial support, he’s come around to the traditionally conservative position, signaling approval of a nationwide abortion ban.

Ever since the Supreme Court overturned federal abortion protections roughly two years ago, the Biden administration has been pushing, unsuccessfully, Congress to protect its access. It follows after Biden’s approved mailing of abortion pills in 2021. 

But the Alliance for Hippocratic Medicine, fought the measure, successfully arguing the FDA overstepped its bounds by acting outside its authority when it authorized the drug for pregnancy termination. They seek to overturn regulation that allows the drug to be sent by mail, limit the scope of doctors who can prescribe the drug, and restrict the terms of use from 10 weeks to seven weeks of pregnancy.

Trump last week said he is thinking about endorsing a 15 week federal abortion ban. If Republicans get the White House again, it would give them the same levers of power as Biden, but they would face an equally almost impossible hurdle in the nearly evenly divided Congress. 

“We know how to beat back a 15 week abortion ban.” said Mini Timmaraju, President and CEO of Reproductive Freedom for All. “With or without unanimity in the GOP — if Trump gets elected, he can still push through.”