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The Supreme Court Preserves Access to Abortion Pills

And Justice Brett Kavanaugh wrote the decision.

Supreme Court Kavanaugh
Justice Brett Kavanaugh authored a unanimous Supreme Court ruling on abortion pills. Eric Gay/AP

Abortion pills are safe for now — and under a majority-conservative Supreme Court.

In a unanimous decision authored by Justice Brett Kavanaugh, the court rejected anti-abortion groups’ bid to challenge the Food and Drug Administration’s approval of mifepristone, a widely used abortion pill.

The ruling preserves access to the most common abortion method in the U.S. Previous federal decisions that reimposed in-person restrictions on mifepristone are no longer valid. The pill will remain widely available by mail and for people to take within the first 10 weeks of pregnancy.

“[A] plaintiff’s desire to make a drug less available for others does not establish standing to sue,” Kavanaugh wrote in the decision of Alliance for Hippocratic Medicine, a coalition of anti-abortion groups, who brought the case.

He went on to write that the anti-abortion groups “have sincere legal, moral, ideological, and policy objections to mifepristone being prescribed and used by others,” but those concerns are not enough to bring a case. He amounted the plaintiffs’ arguments to “complicated causation theories.”

The ruling was limited in scope and did not address the Comstock Act, an 1873 federal law that prohibits the mailing of abortion-related materials.

During the oral arguments for the case, Justices Samuel Alito and Clarence Thomas showed interest in reviving the law, which has been considered dormant since Roe v. Wade was decided in 1973. Anti-abortion advocates have said the Comstock Act should be enforced as a national abortion ban.

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Democrats in Congress have started taking steps to repeal the law amid concerns that it could be brought back if former President Donald Trump returns to the White House in 2025. Sen. Tina Smith announced on Thursday that she plans to introduce a bill to repeal Comstock “in the coming days.”

In his concurrence, Thomas wrote that he agreed that the anti-abortion groups lack standing. But he then brought attention to a 1977 case that allowed organizations to bring a suit on behalf of their members, casting doubt on that decision and arguing the Supreme Court should “reconsider” how it evaluates associational standing. This reading alarmed abortion rights groups.

“The decision as a whole absolutely should be ready to foreclose certain avenues that we expect the states or other anti-abortion advocates to try to pursue,” Julia Kaye, senior staff attorney for the ACLU’s Reproductive Freedom Project, said in a press conference. “But of course, those folks will be closely reading the decisions for breadcrumbs about how they might be able to succeed where these anti-abortion associations and individual doctors failed,”

Thursday’s decision on mifepristone comes almost exactly two years after the Supreme Court overturned Roe v. Wade, effectively eliminating all federal protections on abortion.

At the time, Alito wrote that by overturning Roe, the court was removing itself from the political discourse around abortion. The opposite has happened, as a number of abortion-related challenges continue to put the highest bench under the spotlight.

Oriana González is a reporter at NOTUS.