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The Supreme Court will rule on the availability of mifepristone, a key abortion drug

STEVE INSKEEP, HOST:

The U.S. Supreme Court is preparing to rule again on abortion. This morning, it said it will hear arguments on the availability of mifepristone, one of the two drugs used in medication abortions. The decision about whether to review this case had been anxiously awaited. And of course, they will now be anxiously awaiting the arguments and the rulings. NPR's Danielle Kurtzleben is covering this story. She's in our studio, Studio 31, here in Washington, D.C. Good morning.

DANIELLE KURTZLEBEN, BYLINE: Good morning, Steve.

INSKEEP: What's this case about?

KURTZLEBEN: So this is a potentially really consequential case about the availability of mifepristone, which is one of two drugs used in medication abortions. And that is the most popular form of abortion. The short version of the Supreme Court deciding to take this on is this - is that the drug will remain available for now in its current form, meaning you can get it via telemedicine or mail, and that it is usable up to 10 weeks of gestation. But however, the Supreme Court rules, that could change that.

INSKEEP: OK. Of course, it's always about the details of a specific case, even though...

KURTZLEBEN: Right.

INSKEEP: ...It could have sweeping implications for everybody in America, or many people in America. What's going on in this specific case?

KURTZLEBEN: Sure. So there are a few twists here. This hinges on a suit that an anti-abortion rights group brought against the FDA regarding this drug. The group is called the Alliance for Hippocratic Medicine, and that group said that the FDA wrongly approved mifepristone back in 2000. In addition, the group challenged a bunch of later regulation changes that have made it easier to get mifepristone.

INSKEEP: OK.

KURTZLEBEN: The group is arguing that about the possibility of doctors having to care for patients suffering complications from the drug. Now, to be clear, studies have found medication abortion to be safe and effective. So what happened is in April, a federal judge in Texas, Matthew Kaczmarek, agreed with the anti-abortion group. So his ruling would have made the drug entirely unavailable.

INSKEEP: OK. First level of federal review says get this drug out of there.

KURTZLEBEN: Right.

INSKEEP: It was improperly approved. However, the drug is still available because what?

KURTZLEBEN: The Supreme Court said the drug could remain available until this all got sorted out. So then the Justice Department appealed, and the Fifth Circuit of appeals had a nuanced decision. It said that the drug was - the drug approval was fine. You can't wind back a drug that was approved 23 years ago. But they said, yeah, we are going to wind back those later regulation changes that made the drug more available. So were that ruling to stand, mifepristone would be much harder to get.

INSKEEP: OK, so there's been one ruling against the drug, one ruling that's kind of a 50/50 muddle. And is it important then that the Supreme Court has said, we're going to sort this out?

KURTZLEBEN: Yes, very much, because if the Supreme Court hadn't taken this up, those new, looser regulations would have been reversed. So then it would be way harder to get mifepristone. For example, you wouldn't be able to get it via telemedicine. It would also mean you couldn't get it by mail, even if you live in a state where abortion is legal. That would be a huge deal post-Dobbs, because patients in states where abortion is banned can still, right now, get the pills through the mail. So now that the justices have agreed to take this up, the drug will remain available for now.

INSKEEP: That is the short term, but I guess the longer term is very uncertain.

KURTZLEBEN: Very much - the Supreme Court could do any number of things. They could restrict the drug. They could not restrict the drug. Also, they could simply say that the plaintiffs didn't have standing to bring this case, that they weren't injured by the approval of mifepristone so they don't have any grounds to bring the case, period. In which case this all could start over again with a new case. So, long story short, we have another abortion case set to be decided next summer that could totally affect the 2024 election.

INSKEEP: NPR's Danielle Kurtzleben - thanks very much for your insights. Really appreciate it.

KURTZLEBEN: Yeah. Thank you.

INSKEEP: And we are to note here that NPR has an underwriting relationship with the FDA. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Steve Inskeep
Steve Inskeep is a host of NPR's Morning Edition, as well as NPR's morning news podcast Up First.
Danielle Kurtzleben
Danielle Kurtzleben is a political correspondent assigned to NPR's Washington Desk. She appears on NPR shows, writes for the web, and is a regular on The NPR Politics Podcast. She is covering the 2020 presidential election, with particular focuses on on economic policy and gender politics.