Despite how the justices ruled, the abortion pill battle could still wind up right back at the Supreme Court.
The Biden administration’s appeal to the 5th U.S. Circuit Court of Appeals is scheduled to be heard on May 17. If the administration loses, the next step is the Supreme Court — again.
“This judicial ping-pong game is impacting the accessibility of a safe, effective, decades-long approved medication and is causing chaos and confusion,” Carrie Flaxman, senior director, public policy litigation & law at Planned Parenthood, said during a recent briefing.
Legal experts and reproductive rights advocates say the people who are being impacted the most are the ones who live in states where abortion is still legal.
“That’s the thing that’s kind of ironic about the case, right? It’s filed in Texas, but really, no matter what happens, it’s not going to have any impact in Texas or any impact in the states that ban abortion, because in those states, people already are not able to legally access this drug,” said Greer Donley, an associate professor at the University of Pittsburgh School of Law.
Anti-abortion groups are also still plotting ways to attack the drug.
For example, Students for Life this week filed a citizen petition with the Food and Drug Administration (FDA) asking that it take mifepristone off the market until it can study whether trace amounts of the pill in wastewater pose any risk to “endangered or threatened species or designated critical habitats.”
The FDA did not conduct an environmental study regarding the potential impact mifepristone could have on the nation’s wastewater, the group argued, and underestimated the number of at-home abortions that would be performed using mifepristone.
Students for Life argued the high number of people flushing fetal remains contaminates America’s wastewater system.
The FDA is required to respond to any citizen petition within 180 days, and if they don’t, the petitioner can sue.
The Texas lawsuit that the Biden administration is appealing hinges at least partly on the agency’s alleged failure to respond to earlier citizen petitions.
