What’s at stake in the Supreme Court abortion pill case

Tuesday’s oral argument is focused on whether to overrule the FDA and reimpose some restrictions on getting medication to terminate pregnancy

By Ann E. Marimow and Caroline Kitchener
March 24, 2024 at 11:00 a.m. EDT

Less than two years after the Supreme Court overturned Roe v. Wade, the issue of reproductive rights is returning to the high court on Tuesday as the justices consider whether to limit access to a medication used in more than 60 percent of U.S. abortions.


The Biden administration and the manufacturer of mifepristone are seeking to reverse a lower-court ruling that would make it more difficult to obtain the medication, first approved nearly 25 years ago and shown in multiple studies to be overwhelmingly safe.

The conservative U.S. Court of Appeals for the 5th Circuit said the Food and Drug Administration failed to follow proper procedures and thoroughly explain its reasoning when it began loosening regulations. The changes made in 2016 and again in 2021 allowed mifepristone to be taken up to 10 weeks into pregnancy, instead of seven weeks, prescribed by a medical professional other than a doctor, and mailed directly to patients without an in-person medical consultation.

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Here’s a look at what’s at stake.

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Daniel Gilbert, David Ovalle and Dan Diamond contributed to this report.


By Ann Marimow
Ann Marimow covers the Supreme Court for The Washington Post. She joined The Post in 2005, and has spent a decade writing about legal affairs and the federal judiciary. She previously covered state government and politics in California, New Hampshire and Maryland. Twitter https://twitter.com/amarimow

By Caroline Kitchener
Caroline Kitchener is a reporter covering abortion at The Washington Post. She won the 2023 Pulitzer Prize for National Reporting. Twitter https://twitter.com/CAKitchener

familynet

In a historical note, on this date in 2010, Pres Obama signed an executive order against the use of federal funds to pay for elective abortions.

ushistoryteacher

And in a more detailed historical note, President Obam's Executive Order reinforced the longstanding commitment to the Hyde Amendment's policy restricting federal funds for abortion within the context of recent health care legislation. President Obama reluctantly did so only after an agreement with anti-choice Democratic Congressman Bart Stupak, who had said he would not support the Affordable Care Act unless the Bill's language prohibiting federal funding of abortions was strengthened. Politics being the art of compromise, sometimes presidents do what they have to do.

Executive Order 13535

Executive Order 13535 is an executive order announced by President Barack Obama on March 21, 2010, and signed on March 24, 2010. It reinforces a commitment to preservation of the Hyde Amendment's policy restricting federal funds for abortion within the context of recent health care legislation. The order was signed after an agreement with anti-abortion Democratic Congressman Bart Stupak, who had said he and several other anti-abortion Democrats in the House of Representatives would not support the Patient Protection and Affordable Care Act unless the Bill's language prohibiting federal funding of abortions was strengthened.

The executive order was condemned as ineffective by major anti-abortion organizations, including the Susan B. Anthony List, the National Right to Life Committee, the United States Conference of Catholic Bishops, Family Research Council, the American Family Association, Focus on the Family, and Americans United for Life, among others. The organizations said executive orders can be rescinded at any time by any administration. They also said the fact that an executive order was needed proves that the health care law did fund abortion. The National Right to Life Committee said the executive order did not correct seven provisions in the law they identified as objectionable.

Pro-abortion rights groups also condemned the executive order, questioning Obama's commitment to the pro-abortion rights position. The National Organization for Women, Planned Parenthood, NARAL Pro-Choice America, and EMILY's List were among pro-abortion rights groups opposing the executive order.

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