State leaders and reproductive rights advocates on Tuesday denounced a case before the U.S. Supreme Court that could curb access to abortion medication for people throughout the country.
The Supreme Court heard oral arguments in a case that would challenge the Food and Drug Administration regulations of Mifepristone, a commonly used abortion pill. The plaintiffs, Alliance Defending Freedom, had filed the federal lawsuit in Texas, charging that the FDA’s authorization of the drug was improper.
U.S. District Judge Matthew Kacsmaryk issued a decision invalidating the FDA’s approval of mifepristone, but an appeals court ruled Mifepristone should remain accessible, albeit with limitations on obtaining the pill by mail and telehealth prescribing. The case made its way to the Supreme Court.
Connecticut officials called it the latest attack on reproductive rights.
“When the Supreme Court rolled back Roe v. Wade almost two years ago, I said the fall of Roe was not the end of this fight … that after Roe fell, they would come for us and try to pass a nationwide ban on abortion. And so, they have. They’re trying this morning in the U.S. Supreme Court,” Attorney General William Tong said Tuesday. “This is an attack on women and patients and doctors and nurses. It represents their full frontal assault on abortion.”
“Our ability to control our lives and bodies is once again in the hands of the U.S. Supreme Court,” said Gretchen Raffa, vice president of public policy, advocacy and organizing for Planned Parenthood of Southern New England. “Mifepristone is safe, effective and has been used [by] more than 5 million people in the United States since the FDA approved it 20 years ago. This important medication has helped ensure patients are able to make their own private medical decisions and has expanded access to reproductive health care, something that is under dire threat in our country.”
Mifepristone is taken along with misoprostol to end a pregnancy. The Food and Drug Administration first approved the drug in 2000. Data from a 2023 study found that medication abortion is used in well over half of abortions in the U.S., with the numbers increasing since 2020.
Since then, the FDA has expanded access to the medication through two regulations. A 2016 rule lowered the dosage and administration of mifepristone and extended its use from seven to up to 10 weeks of pregnancy. And in 2021, during the pandemic, the agency allowed certified pharmacists to dispense it and approved mail-order delivery through telehealth.
In 2021, there were 9,562 abortions performed in Connecticut. Of those, nearly 64% were medication abortion using mifepristone.
“Use of Mifepristone has soared. It is now relied on by women as an absolutely necessary drug. Mifepristone has been found safe and effective, and it has proved to be safe and effective for 20 years,” U.S. Sen. Richard Blumenthal said. “We are in the midst of a war on women’s health.”
State Rep. Jillian Gilchrest, a West Hartford Democrat and key backer of reproductive rights, said the rollback of Roe v. Wade has had dire consequences. Abortion is banned in 14 states, according to KFF, a health policy research and polling organization.
“We are seeing what the abortion bans are doing all across this country. Women are dying. Women can no longer have children as a result of their delayed abortion. Individuals are experiencing trauma from the delayed abortions,” she said.
“Quite frankly, it comes down to this: You do you. If you don’t want to get an abortion, don’t get an abortion. But don’t push your beliefs on all of us.”
Oral arguments
This is the first abortion-related case to come before the U.S. Supreme Court since the 2022 landmark ruling that overturned nationwide abortion protections under Roe v. Wade and put the issue of access to the states.
The Supreme Court heard an hour and a half of oral arguments on Tuesday in the case challenging the FDA’s expansion of access to abortion medication.
U.S. Solicitor General Elizabeth Prelogar, who is representing the FDA, argued that the lawsuit could “unnecessarily restrict access” to mifepristone and could lead to more women going through invasive abortion procedures.
Anti-abortion doctors are challenging the FDA’s regulations. Erin Hawley, a lawyer with Alliance Defending Freedom, representing the doctors and some medical groups, raised concerns about the safety of mifepristone and doctors who may need to assist with the complications of taking the medication that violate their conscience.
Federal conscience statutes are in place to protect health care providers who do not want to help with medical services because of religious or moral reasons.
Much of the hearing revolved around legal standing — whether a party can bring a lawsuit before the court and prove it has or will suffer an injury. Based on the questioning, many of the justices sounded skeptical of the anti-abortion doctors’ lawsuit against the FDA regulations surrounding mifepristone.
Conservative and liberal justices pressed Prelogar about who would have standing in such a case. Prelogar said many of the examples are too speculative or would not be able to identify sufficient harms.
Justice Ketanji Brown Jackson said she was concerned about the “significant mismatch between claim of injury and the remedy that’s being sought” from the plaintiffs of nationwide restrictions to the FDA’s actions.
During the arguments, Justice Clarence Thomas and Samuel Alito made a few references to the Comstock Act, a law from 1873 that has been defunct for decades.
Prelogar and a lawyer for the pharmaceutical company that manufactures the brand name of Mifepristone argued the law has not been enforced in nearly a century. Thomas later asked Hawley about their answers about the Comstock Act and saying it does not apply. Hawley argued that the text of the law is “pretty clear” around drugs not being mailed.
A decision is expected this summer, likely in late June, when the high court typically releases opinions in its most prominent and controversial cases.
‘We’re going to be in every fight’
Given the Supreme Court’s focus on legal standing, Tong and others said they felt “encouraged” that the justices will dismiss the case. But they said that will not stop them from getting involved in other legal challenges to restrict abortion access and reproductive care.
“What business is it of the plaintiffs what a woman in Connecticut does with their body? It’s none of their damn business. I’m encouraged by the arguments, but we’re not going to wait for the Supreme Court,” Tong said. “We’re going to go on offense.
“Abortion is safe, legal and accessible in Connecticut right now, and it’s going to stay that way. So is access to safe and vital medication known as Mifepristone.”
Tong has joined several multi-state challenges to the Alliance Defending Freedom case.
“It doesn’t matter where this fight takes us, we’re going to be there,” he said Tuesday. “We’re going to be in every fight at any court, any time, any place.”
Connecticut officials argue the ruling could have nationwide implications ahead of the 2024 presidential election. The issue of abortion ended up playing a major role in the 2022 midterm elections, which came five months after the Dobbs v. Jackson decision.
That year, Democrats outperformed expectations of major losses and ultimately gained a seat in the Senate, while Republicans took back the House with a narrow majority. Since then, voters in half a dozen states — including Republican-leading ones — have passed constitutional amendments to protect abortion access through state ballot initiatives.
A proposal before the Connecticut General Assembly is seeking to enshrine the right to an abortion, among other things, in the state’s Constitution.
Advocates for abortion access are also looking to Congress to codify it into federal law with the expectation that critics will keep bringing challenges to reproductive care before the courts.
Gov. Ned Lamont issued a plea Tuesday to Blumenthal for Congress to act. Democrats have sought to pass the Women’s Health Protection Act, which would protect abortion nationally. The bill passed the House when Democrats had the majority in 2021 and 2022 but was blocked in the Senate. The legislation has since stalled in a divided government.