Explainer: What’s happening with the Supreme Court and abortion pills?

On Friday, May 1, the U.S. Court of Appeals for the Fifth Circuit put a temporary block on mifepristone – one of two medications used for medical abortions – being administered via telemedicine and mail order, a practice that has been allowed since 2021. Two companies that manufacturer mifepristone then appealed to the Supreme Court, which, on Monday, May 4, paused the Fifth Circuit Order until May 11.  

We spoke to Harvard Kennedy School adjunct lecturer MaryRose Mazzola about this legal battle and the medication at its center. Mazzola is an attorney, public policy expert, and political professional who teaches about reproductive rights, politics, and policy at the Kennedy School. The conversation has been lightly edited for length and clarity.  

Q: Why have more people used mifepristone since Roe v. Wade was overturned?  

Roe v. Wade was overturned by the Dobbs v. Jackson Women's Health decision in June 2022. That decision removed federal protections for abortion and allowed the issue to be returned to the people's elected representatives, which has really been interpreted as going back to the states, but could also include Congress, should there be a Congress that has an appetite to decide on this issue. States can now fully ban abortion, or severely restrict it, and about half the states across the country have chosen to do so.

Since then, and in conjunction with the COVID pandemic and the proliferation of telehealth, medication abortion—which is typically prescribed through ten weeks gestational age but can be stretched a little bit further—has really taken off across the country.  

Even before the Dobbs decision, people preferred to be able to get care via telemedicine, especially if they live in a rural area. A lot of college students prefer it. In the post Dobbs landscape, it has been a critical tool for people to access healthcare in those states that have banned abortion by getting telemedicine via abortion pills in the mail.

Q: When did the recent legal battles around mifepristone begin?

We know from the research from hundreds of scientific studies over the last twenty years that mifepristone is safe. In over 99% of cases, no hospitalization is needed afterwards. It’s also over 95% percent effective in completing an abortion on its own.  

But despite that, since abortion medication is a way that folks can access that care in banned states, it becomes this political issue and this cultural hot topic.

As a result, shortly after the Dobbs decision, in early 2023, federal courts began to intervene on the issue of mifepristone’s safety and efficacy.

Q: What happened the last time mifepristone was debated in the Supreme Court?  

In 2023 and into 2024, we see a very prolonged back and forth between the Fifth Circuit Court and the Supreme Court.  

The plaintiffs in that case were doctors who were part of an anti-abortion advocacy group, arguing that the FDA’s approval of mifepristone should be rolled back to its original 2000 approval, which only allowed use through 7 weeks of pregnancy and via in-person prescription. In June 2024, the Supreme Court held this very narrow decision, not really on the substance of the issue, but about the fact that these particular doctors did not have standing in the case because they couldn’t demonstrate harm by the current FDA allowance and regulation of mifepristone use. That got sent back down to lower courts and has been bubbling for almost two years.Q: What are the most recent developments?  

Once again, the Fifth Circuit, this time out of New Orleans, [ruled] that, mifepristone should be regulated back to what the rules were pre-COVID.  

During COVID, people need to access telemedicine to get their care, [so] the rules around mifepristone were changed. You no longer had to go in person and get prescribed in person by a doctor. You could get mifepristone via a pharmacy or the mail.  

This ruling that came out last Friday essentially says “we are rolling back FDA approval of mifepristone to the pre-2021 guidance.” It was a little unclear how pharmacies were impacted by that ruling. But what was very clear was that it put a pause nationally on any mifepristone prescribed via telemedicine and sent via mail. Even states that chose to protect abortion care under this ruling could no longer send the drug out to patients.

[The next development was] the Supreme Court, on May 4th, essentially giving an administrative stay—not ruling on the merits or the substance of the case, but taking more time. They have given a one-week stay, or pause, of that Fifth Circuit court ruling to do more fact finding and hear from both parties.

Q: How frequently do people use medications and telemedicine for abortions?  

Two thirds of all abortions in the United States are now done via medication abortion. Because that can be delivered via telemedicine, it has made things a lot easier for folks living in states across the country that have abortion bans or severe restrictions.  

But it also helps people who may just have a hard time accessing in-person health care. They live in a reproductive health desert. They are living in a rural area. They have children or work obligations that don’t allow them to get to the doctors during work hours.  

It can also help where there’s stigma. If, on top of logistical barriers, you may experience harassment or discrimination as you travel to a clinic, telemedicine can be so important.  

Q: Are there other uses of mifepristone that will be impacted by these rulings?

Mifepristone does have uses outside of abortion. It is most closely associated with reproductive health care and can help treat uterine fibroids, for example, but it can also be effective in treating Cushing Syndrome.

In a lot of cases, as part of miscarriage management, the gold standard in medicine is to prescribe mifepristone to make sure that the miscarriage is completed.  

The consequences of restricting mifepristone are going to broadly impact reproductive health.

Q: What’s the role of drug companies in this legal battle?  

There are two pharmaceutical companies who produce mifepristone—one that has the name brand version and another that produces a generic version. And they interceded [after the Fifth Circuit ruling] and requested this pause from the Supreme Court.  

Their main argument was, “this is regulatory chaos. And if we are superseding what has long been decided to be a congressional role and a scientific role in approving FDA REMS [Risk evaluation and mitigation] guidance, and which drugs are regulated and considered safe by the FDA, then we have introduced a whole different way of regulating drugs and medicine and food in this country.”

Q: If the Supreme Court ends up restricting access to abortion pills, who will face the greatest impacts?

When we’re talking about limiting access to reproductive and sexual health care, that’s not going to impact people the same. Even after the Dobbs decision got handed down, the result was never going to fully ban abortion. You’re going to ban safe abortion—and you’re going to ban abortion for people who don’t have the means to travel, especially those who are already in historically marginalized communities.

People who have the means, who have privilege and networks, will find ways to get care. If mifepristone is restricted, we’re going to see it disproportionately impact Black and Brown women, low-income women, and people in the South. 

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Photo by Tom Brenner for The Washington Post via Getty Image