Supreme Court’s looming mifepristone decision leaves abortion rights in spotlight

The Supreme Court’s expected decision this summer on whether to restrict access to medication abortion promises to keep the issue front and center of the 2024 election.

Justices will hear a case weighing federal approval of the common abortion pill mifepristone, with a likely ruling in June — five months before voters decide who will go to the White House and Congress, and almost exactly two years after the high court overturned the constitutional right to an abortion.

Both parties are now gearing up for one of the Supreme Court’s first abortion cases since reversing Roe v. Wade, a legal sea change that has galvanized voters toward the Democratic Party and bedeviled Republicans at the ballot box and the campaign trail.

Democrats, who have made abortion rights a focal point in 2024, see the mifepristone case as yet another motivating force for voters in battleground areas.

“If [the decision] were to in some way result in [mifepristone] not being available, I just think it’s another earthquake,” said Democratic pollster Anna Greenberg, who’s worked for Planned Parenthood and Reproductive Freedom for All.

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Even agreeing to hear the case in December, the high court added to several major abortion cases and rulings that have rocked the country and emboldened Democrats. That same week in December, the Texas Supreme Court ruled against a woman seeking an emergency abortion who fled the state to receive the procedure. And last week, a federal appeals court ruled Texas health providers were not required to provide abortion access in emergency care.

“As long as women have to refight these fights over and over again, the more Democrats will have to fight with them. And the more that conversation continues to be had, the more energized voters are going to be to come out and vote on that issue, specifically,” said Jennifer Holdsworth, a Democratic strategist who was prescribed mifepristone for a past miscarriage.

Holdsworth says she feels the issue personally.

“I don’t want Republicans or the United States Supreme Court telling me what conversation I can have with my doctor,” she said. “Republicans don’t seem to understand that.” 

Strategists say the issue could also help energize voters of color and younger voters, key voting blocs President Biden and the Democratic Party hope to shore up in 2024.

“I do think it’s beneficial in that way in firing up this younger generation to make sure that these rights stay in place. And I think particularly for Black women, because we know that we’re disproportionately affected by this issue,” said Aprill Turner, vice president of communications and external affairs at Higher Heights for America PAC, an organization that looks to add more progressive Black women to office.

But Republicans and abortion rights opponents argue the high court’s decision to hear the case — and ultimately whether to restrict mifepristone — will not help Democrats even as the debate over abortion haunts Republicans in election seasons.

“I think Democrats incorrectly think that this is going to inure their political benefit in 2024,” said Gregg Keller, a Republican strategist and former executive director for the Faith & Freedom Coalition. He expressed skepticism that the Supreme Court’s decision to take up the case could end up firing up Democrats’ base and key voting blocs.

“I think that once Missourians and Americans find out more about exactly what they’re pushing for in this case, they’ll realize that it’s just of a piece of the larger kind of … culturally radical views of the modern Democrat Party,” he said. 

Likewise, Kristan Hawkins, president of the anti-abortion group Students for Life of America, says Democrats were “likely overplaying their hand” on their support for abortion.

Greenberg pushed back on the idea that Democrats are overestimating the role abortion will play in 2024, pointing to election results over the past two years.

“It’s already the case that abortion drove Democratic turnout in 2023 in both Virginia and New Jersey and in Ohio,” she said. “This notion that like it’s overplayed, or it was the ‘2022′ issue is just not supported by the data in terms of what we’re seeing people communicate in elections and how they’re affecting outcomes.”

The Supreme Court agreed in December to hear appeals from the Biden administration and the maker of mifepristone asking to reverse a lower court decision that would cut off access to the drug and impose other restrictions, even in states where abortion remains legal. Medication abortions account for more than half of abortions in the U.S., per the Guttmacher Institute, and mifepristone is linked to lower rates of death than Viagra and colonoscopies, according to an amicus brief.

Central to the case is the Food and Drug Administration’s (FDA) approval process for mifepristone, particularly guidance implemented in 2016 and onward. In its approval process, the FDA eased some restrictions around the drug, including expanding the time frame patients could take the pill from seven weeks of pregnancy to 10 weeks.  

The FDA notes online that mifepristone still requires a prescription and the American College of Obstetricians and Gynecologists, along with several others, say in their amicus brief that adverse events account for 0.3 percent of cases.

But Alliance Defending Freedom, representing the abortion opponent plaintiffs, alleged in a cross-petition filing that the FDA’s approval processes of mifepristone “have consistently elevated politics above law, science, and safety” and characterized the agency’s more recent actions relaxing some restrictions as “more recent decisions to remove critical safeguards surrounding its use.” 

Given the scope is mostly on the FDA’s changes beginning in 2016, access to mifepristone would likely still be available, though with likely more restrictions if the Supreme Court decided to rule with the abortion opponent plaintiffs. 

Republicans and abortion rights opponents have knocked the FDA’s easing of restrictions around mifepristone, including not requiring in-person doctor consultation to obtain the abortion pill and allowing the prescription to be sent over the mail. 

Katie Daniel, the state policy director at the abortion opponents’ group Susan B. Anthony Pro-Life America, in a statement to The Hill claimed the case “will expose nationwide the Democrats’ dangerous mail-order abortion drug scheme.” 

Abortion rights advocates maintain voters won’t be swayed at the ballot box this November.

“Voters understand and have made repeatedly clear how they feel about their rights being taken away after the Dobbs decision. They don’t support it,” said Jacqueline Ayers, senior vice president of policy, campaigns and advocacy at Planned Parenthood Action Fund in a statement. 

“Everyone should have the right to make decisions about their bodies, lives, and futures. That includes access to safe and effective mifepristone nationwide, which this case threatens,” she added.