The Supreme Court agreed in December to review a lower court decision regarding the abortion pill mifepristone. Sometime this year, the court will rule on whether to restrict access to the drug; it's currently used as part of a two-pill regimen in medication abortions, which account for more than half of the abortions performed in the U.S. This is the first time the court has agreed to weigh in on the issue of abortion since it eliminated federal abortion protections by overturning Roe v. Wade in June 2022.
This new case has the potential to set a major precedent. If the court chooses to limit access to mifepristone, it will be the first time that the Supreme Court has ever rolled back a medication approved by the U.S. Food and Drug Administration, challenging the organization's authority, notes Colorado Attorney General Phil Weiser.
"This would be a first," Weiser says. "And the scary question is, what's next?"
What Is Happening?
The Supreme Court will review the 5th U.S. Court of Appeals' August 2023 ruling that the FDA improperly loosened regulations on mifepristone. If the appeals court's decision is upheld, it would reverse FDA-approved changes that made obtaining the drug easier for patients, including allowing the pill to be taken later in pregnancy, mailed to patients and prescribed via telemedicine appointments. All of these options are currently available in Colorado.Anti-abortion advocates argue that the FDA didn't adequately consider safety concerns when it approved the drug in 2000 or when it later removed restrictions. Pro-abortion groups point out that mifepristone has been safely used by millions of people for over two decades.
If the Supreme Court upholds the lower court's decision, it will become much harder to access mifepristone, requiring patients to make three in-person doctor visits and prohibiting the use of the pill after seven weeks of pregnancy instead of the current ten. If the court reverses the decision, the status quo will remain. It is also possible that the court would uphold only parts of the decision, rolling back some post-2016 changes to mifepristone access while keeping others intact.
The Supreme Court declined to review a challenge to the FDA's initial approval of mifepristone in 2000. As a result, the court's upcoming decision will not take the pill off the market completely, but it could significantly restrict it.
An argument date has not yet been scheduled for the case, but a decision is expected sometime this summer — around the two-year anniversary of the overturning of Roe v. Wade. In the meantime, mifepristone will remain available as it has been.
How Will It Impact Colorado?
Colorado has taken many steps to protect abortion access since the Supreme Court made reproductive rights a state issue. The Colorado Legislature passed bills to establish abortion as a fundamental right, shield patients from out-of-state penalties and expand health insurance coverage for the procedure. A proposed ballot measure aims to enshrine the right to abortion in the Colorado Constitution.But none of this will shield Colorado from the Supreme Court's ruling, nor could any other state action, according to Weiser.
"The federal government has exclusive authority to regulate medications," Weiser says. "If the Supreme Court decides that this medication can't be provided, there's nothing Colorado can do about it."
States can still have their own laws restricting mifepristone even if the Supreme Court rules against limiting the drug. But if the court imposes new restrictions, even sanctuary states like Colorado will have no power to get around them.
If the Supreme Court restricts mifepristone, medication abortions can still be performed with misoprostol, the second drug in the two-pill regimen. But skipping mifepristone results in more cramping and bleeding for patients, the Washington Post reports. Plus, if the Supreme Court rules in favor of the lower court, it will open the door for other FDA-approved medications to be restricted or removed from the market, Weiser says.
"The Supreme Court has never before considered second-guessing the FDA's expert judgment. If it does, it will set a new precedent," he notes. "You can imagine [abortion] providers pivoting to another medication only to be told, 'No, you can't use that, either.'"
Weiser says he believes a ruling to limit mifepristone access would ultimately "be a step toward banning all abortion."
What Are Coloradans Doing?
Fawn Bolak of Planned Parenthood of the Rocky Mountains says the organization is already bracing itself for a ruling restricting mifepristone."We have been preparing our clinical practices to ensure we can continue to meet the needs of patients regardless of the outcome in this case," Bolak says. "Taking mifepristone off the market would push abortion even further out of reach, even in safe-haven states like Colorado."
This comes as Colorado has experienced a surge in abortion patients since federal abortion protections were overturned. More than 14,400 abortions were performed in Colorado in 2023 — a twenty-year record and more than a 24 percent increase from 2021, according to provisional data from the Department of Public Health and Environment. A whopping 2,822 of the abortions performed in 2023 were for patients who had traveled to Colorado from Texas, compared to only 400 in 2021.
"Mifepristone is safe and is used in more than half of abortion procedures nationwide," Bolak says. "It's important to see this case for what it truly is — the latest assault on our freedom to live our lives, make our own health-care choices and determine our own futures, free from political interference."
Will Duffy, president of Colorado Right to Life, celebrates the Supreme Court case as "an opportunity to protect life," arguing that mifepristone should not just be limited, but banned entirely because "it ends the life of a tiny, innocent human being."
Since the legality of abortion is not part of this case, Duffy says his group is encouraging the Supreme Court to utilize the 1873 Comstock Act to prohibit mifepristone from being mailed to patients. The law was used to block contraceptives from being distributed in the mail until a 1936 U.S. Circuit Court of Appeals decision.
"While abortion itself should be illegal at the federal level, enforcing the Comstock laws will undoubtedly save some unborn lives, which is a good thing," Duffy says.
U.S. Representative Diana DeGette led a group of 263 members of Congress in urging the Supreme Court to reverse the lower court's decision and protect access to mifepristone in an amicus brief submitted January 30.
"The consequences ... could extend far beyond mifepristone," the members wrote in the brief. "The prospect of courts second-guessing FDA’s rigorous drug safety and effectiveness determinations will disrupt industry expectations and could chill pharmaceutical research and development."
What Else Is Going On?
On January 22, reproductive rights organizations launched the campaign for Initiative 89, an effort to add a measure to the November ballot that would enshrine the right to abortion in the Colorado Constitution and allow state funds to be used to pay for abortions. Another potential ballot measure, Initiative 81, seeks to ban all abortion at any point after conception.State legislators are already taking sides on the competing measures. Democrats in the Colorado House of Representatives passed a resolution on January 19 calling for abortion rights to be added to the Colorado Constitution and recognizing the 51st anniversary of the U.S. Supreme Court’s 1973 Roe v. Wade decision.
Republicans criticized the resolution sponsors for "playing political games," saying the abortion issue is all but settled.
"Colorado has the most radical abortion laws in the country," Republican Representative Brandi Bradley said. “This resolution is purely political hype and will do nothing to address the real issues facing all Coloradans."
But the abortion fight is far from over across the country, and it's still top of mind in Colorado, too. Around 100 people gathered at the state Capitol on January 20 to march in support of abortion access. Anti-abortion activists are planning their own "March for Life" rally at the Capitol in April.
"We must continue this fight," Democratic Representative Meg Froelich said of the resolution, "to ensure our fundamental reproductive freedoms are protected for generations to come."
