Court heard arguments today in case that could threaten access to mifepristone
WASHINGTON, D.C. – Today, the U.S. Supreme Court heard oral arguments in Alliance for Hippocratic Medicine v. FDA, which will determine whether women across America will continue to have safe and legal access to a vital abortion medicine, mifepristone, without burdensome restrictions.
“Mifepristone is a safe and effective abortion medication that has been used by over five million people since the FDA approved it over two decades ago. Abortion opponents won’t win in the court of public opinion, so they decided to file this lawsuit threatening patient access to mifepristone and challenging the FDA’s scientific process instead,” said U.S. Senator Maria Cantwell. “I want to ensure everyone knows that mifepristone is legal and accessible in the State of Washington right now – but the Supreme Court’s eventual ruling in this case could affect mifepristone access nationwide.”
Last April, federal district court Judge Matthew J. Kacsmaryk issued a ruling that suspended the Food and Drug Administration’s (FDA) more than 20-year-old approval of mifepristone. That ruling threatens access to mifepristone for patients nationwide – including in states like Washington that have expressly codified the right to an abortion into law – as well as FDA’s Congressionally-mandated authority and drug approval process. The Fifth Circuit Court of Appeals ruled in August that although the FDA’s approval of mifepristone in 2000 can remain in place, other steps that the FDA took to expand access, like allowing mifepristone to be accessed via telemedicine, must be overturned. The Fifth Circuit ruling has not gone into effect because the Supreme Court issued a stay that allows mifepristone to remain on the market while the case is under review.
Mifepristone is safe and widely used — more than half of the abortions provided in Washington state are medication abortions.
In December, Sen. Cantwell joined a resolution expressing support for the abortion medication mifepristone and calling for the Food and Drug Administration’s approval of the drug to be respected. The resolution followed the Supreme Court’s announcement it would review a lower court ruling that would restrict access to mifepristone nationwide. In January, Sen. Cantwell joined 263 Members of Congress in filing an amicus brief with the Supreme Court in the case, urging the reversal of a lower court ruling that would restrict access to mifepristone. Sen. Cantwell has been actively tracking the litigation, which has significant ramifications for access to this medication, and joined colleagues to file amicus briefs at multiple stages in the litigation.
Since the Supreme Court’s decision in Dobbs, abortion has become inaccessible in much of the United States. The resulting delays and denials of care have already had baleful effects on the health of pregnant individuals, for some of whom pregnancy is a life-threatening condition, regardless of their desire to carry their fetus to term. If left to stand, the Fifth Circuit’s order would exacerbate these adverse health outcomes by placing unnecessarily restrictions on access to the most common method of early abortion—a two-drug regimen of mifepristone and misoprostol. Moreover, restricting access to mifepristone—also used in combination with misoprostol for the management of early miscarriage—will mean fewer options for treating early pregnancy loss, which includes a spontaneous abortion, missed abortion, incomplete abortion, or inevitable abortion. These conditions can be life-threatening, including posing a risk of sepsis or loss of future pregnancy capacity, if not treated quickly.
Ahead of the of the 51st anniversary of the since-reversed U.S. Supreme Court decision in Roe v. Wade, in January Sen. Cantwell released a snapshot on the status of abortion providers and patients in the State of Washington since the Dobbs decision. The snapshot revealed a strained reproductive care delivery system in the State of Washington, with the number of abortions rising by 23% in 2022 and abortions for out-of-state patients surging by 46%, even as clinics struggle with staffing and harassment.
Currently, 21 states have total abortion bans or stringent restrictions in place, and in 2023, over 1,000 provisions to impose further limits on reproductive health care or roll back reproductive rights were introduced across the country.
Since a leaked draft opinion indicated the Supreme Court’s intent to overturn the reproductive care precedent established under Roe, Sen. Cantwell has been focused on protecting abortion access and choice for women across the country. In March 2023, Sen. Cantwell joined U.S. Senator Patty Murray (D-WA) in reintroducing the Women’s Health Protection Act and hosting a roundtable discussion on the path forward to defend Americans’ reproductive rights.
In April, Sen. Cantwell joined Sen. Murray and 25 other colleagues in reintroducing the Let Doctors Provide Reproductive Health Care Act, which would ban anti-choice states from restricting or preventing health care providers from performing abortions in states where abortion is legal.
In May, Sen. Cantwell joined 12 Senate colleagues in reintroducing the My Body, My Data Act to protect personal reproductive health data.
Also in May, Sen. Cantwell joined 29 Senate colleagues to introduce the Protecting Service Members and Military Families’ Access to Health Care Act, legislation that would codify the Department of Defense’s policy to help service members and their families access non-covered reproductive health care – including abortion services – regardless of the state in which they are stationed.
In June, Sen. Cantwell joined colleagues in reintroducing the Right to Contraception Act to codify the right to contraception access established by the Supreme Court ruling Griswold v. Connecticut in 1965. The same month, Sen. Cantwell cosponsored the Freedom to Travel for Health Care Act to ban anti-choice states from penalizing or prosecuting health care providers that offer reproductive services in states where abortion care is legal.
In July, Sen. Cantwell joined 46 colleagues in writing to Secretary Becerra to urge HHS to adopt stronger privacy regulations for Americans’ protected health information, including a warrant requirement for the release of medical records in the reviewed Health Insurance Portability and Accountability Act (HIPAA) privacy rule regulation. These protections are particularly important because 19 Republican attorneys general – including Idaho’s Raúl Labrador – sent a public comment to Secretary Becerra strongly opposing the Department of Health and Human Services’ revised HIPAA protections. If successful, their opposition would make it easier for officials in Idaho to investigate abortions performed in Washington state and prosecute patients and providers. This is alarming in light of the findings in Sen. Cantwell’s snapshot report showing substantial and continuing increases in out-of-state abortion patients in Washington.