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Supreme Court set to weigh in on availability of abortion pill mifepristone


The Supreme Court has ruled that for now at least, women will continue to have access to the abortion drug mifepristone. An earlier federal court ruling has been stayed while it goes through the appeals process. And joining us now to explain all of this is Mary Ziegler, a professor and expert on the law, history and politics of reproduction at the University of California, Davis. Welcome.

MARY ZIEGLER: Thanks for having me back.

CHANG: Oh, thanks for being back. So what does this ruling from the Supreme Court essentially say, if you can just summarize it for us real quick?

ZIEGLER: Well, the court's basic ruling for the majority - it was a 7-2 order - basically means the status quo before any of this litigation began will be in place. So that means mifepristone will be available till the 10th week of pregnancy. It'll be available for telehealth in states where it's legal. Essentially, the court said, we're going to just put a stay, keep the status quo in place, and then everything is going to unfold as it otherwise would in the lower courts.

CHANG: Right. OK. And just to be totally clear, to reiterate, what does this ruling exactly mean for people in the U.S. and their access to mifepristone?

ZIEGLER: It means that we're returned to a moment that we were in before this litigation began. So if you're in a state where abortion is a crime, it's still a crime. If you're in a state like I am in California, you have the same access to abortion medication, this pill, mifepristone, that you did before this litigation began. So up until the 10th week of pregnancy and via telehealth, as well as seeking it in person.

CHANG: Right. And you mentioned that this was not a unanimous order from the high court. Two justices voted no, right? Can you tell us more about that, the divisions you saw?

ZIEGLER: Right. So we didn't get anything written from Justice Clarence Thomas. Samuel Alito wrote separately to say that he was not weighing in at this point on whether the FDA had the authority to approve mifepristone. He said nothing about the Comstock Act. Instead, he simply said there was no showing by the FDA that this order was needed to prevent any kind of harm, and his claim was that the FDA wouldn't enforce anything if mifepristone had become unapproved. And he even suggested that the FDA might ignore the order - right? - that the FDA would not pay attention to the courts or use its enforcement discretion to not go after people for unapproved uses of mifepristone. So we got no justices really siding with the plaintiffs, as far as we know, on the merits of their claims and a lot of the conservative justices, apart from Alito and Thomas, voting to leave the status quo in place when it comes to mifepristone access.

CHANG: And, Mary, can you just explain - because it's been such a windy path to get here in the first place and now further litigation is expected or the appeals process is expected - can you just go into where do we go from here? Like, what is the next stop from the legal perspective? Give us a blueprint.

ZIEGLER: Yeah. So we know that that the 5th Circuit is going to hear this case on an expedited calendar, so we're likely to get some kind of ruling from them from the appeals court. But that process to get this all the way through the federal courts back to the U.S. Supreme Court is going to take a while. So the kind of breakneck pace it seems we've been in recently where we're hearing about this every week seemingly will probably slow down a little bit, even though the 5th Circuit has put its own calendar on an expedited timeline. So the next kind of round of things is going to come in the lower courts. We expect this to go back up to the U.S. Supreme Court after that because there are still conflicting rulings as far as other lower court. The - Judge Rice in Washington ordered these 17 liberal states and the District of Columbia to preserve access to mifepristone. So while there's no longer a clash on what mifepristone access is going to look like, we're still expecting likely - more likely than not - that this will make its way back to the U.S. Supreme Court down the road. And based on today's order, if you were guessing, you would guess that the Supreme Court is not going to use this as a vehicle to limit access to mifepristone.

CHANG: Well, if we can just zoom out for a little bit and talk about the broader stakes here, you've written about how anti-abortion rights groups may use this moment to do more than simply try to block access to mifepristone. Can you talk about that piece a little bit? What else can we expect in the next several months?

ZIEGLER: Yeah, well, we've seen kind of cues in the litigation in this case that anti-abortion groups are going to try to use the Federal Comstock Act to ban the mailing of mifepristone and maybe ban abortion nationwide. And there have been suits raising that claim that have already been filed. There are problems procedurally with some of those as well, so it's not clear whether those will be the vehicles that the Supreme Court is looking for. And, of course, in the meantime, we're seeing lots of struggles unfold in states both in terms of access to abortion within those states, but also in places like Idaho...

CHANG: Oh, right.

ZIEGLER: ...States are beginning to experiment with limits on the ability to travel across state lines for abortion, at least for minors.


ZIEGLER: And so that, too, is something that may eventually find its way to the U.S. Supreme Court - the intersection of the right to travel...


ZIEGLER: ...What lawyers call choice of law - and the abortion fight.

CHANG: That is Mary Ziegler of the University of California, Davis. Thank you so much.

ZIEGLER: Thanks again for having me. Transcript provided by NPR, Copyright NPR.

Michael Levitt
Michael Levitt is a news assistant for All Things Considered who is based in Atlanta, Georgia. He graduated from UCLA with a B.A. in Political Science. Before coming to NPR, Levitt worked in the solar energy industry and for the National Endowment for Democracy in Washington, D.C. He has also travelled extensively in the Middle East and speaks Arabic.
Ashley Brown is a senior editor for All Things Considered.
Ailsa Chang is an award-winning journalist who hosts All Things Considered along with Ari Shapiro, Audie Cornish, and Mary Louise Kelly. She landed in public radio after practicing law for a few years.