Impact on Reproductive Rights of Recent Supreme Court Rulings

As part of our continuing coverage of the Republican assault on our basic freedoms, here’s an update on the Supreme Court cases from this session that impacted our reproductive rights: We haven’t seen the last of the attack on medication abortion. And a potential new front in the battle has been enabled by the Supreme Court’s overturning of the Chevron deference, which long held that expert agencies should receive “deference” in interpreting laws in their field of regulation. 

Post-Chevron, a lawsuit could challenge and overturn the FDA’s ability to classify medications like mifepristone or even oral contraceptives. 

In June, the Supreme Court ruled that abortion opponents lacked the legal standing to sue over the FDA’s approval of the medication mifepristone, which was used in two-thirds of all abortions last year. By reporting that the Court ruled “in favor of abortion rights” or that the ruling “preserved access” to mifepristone, some media coverage is giving Americans the impression that the medication is safe from being banned. The truth is that the ruling wasn’t really “in favor” of anything related to abortion; it was about “standing,” that is, who has the right to challenge the FDA’s rules on medication. That’s why anti-abortion activists and groups aren’t more upset, and why they’re moving straight ahead with their other plans. 

Expect more lawsuits
As Public Rights Project founder Jill Habig told NBC News, “I think there’s going to be a hunt for plaintiffs that can satisfy the court’s standing requirements.” And remember, the right-wing legal powerhouse Alliance Defending Freedom plans to move ahead with the same challenge, this time from three Republican-led states. 

And here’s what law professor Mary Ziegler told POLITICO: “It just kicks the can down the road. The court didn’t say anything to suggest any skepticism of the plaintiffs’ claims on the merits. So these states could be back with virtually identical claims before the Supreme Court in a year or a year-and-a-half.”

Proven medications under attack 
Furthermore, even though the Court punted on mifepristone, ruling that the plaintiffs lacked standing, Justice Ketanji Brown Jackson suggested the mifepristone case would be “fair game” for a new lawsuit, even though the statute of limitations for challenging the drug, which was approved in 2000, has long expired. The drug has an impressive safety record, and has been used without issue five million times. The overturning of Chevron means that old decisions, rulings, and cases, can be revisited. “From this day forward, administrative agencies can be sued in perpetuity over every final decision they make,” she wrote.
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In an administration with a divided congress, as now with the current Republican majority in the House and a Democratic majority in the Senate, Presidents tend to rely on federal agency regulations, rather than legislative action, to make policy changes. President Biden has increasingly turned to agency regulations to address power plant emissions, student loan forgiveness, affordable housing, and overtime pay, to name just a few. All of these actions, and others, can now be challenged and overturned owing to the SCOTUS decision. Health policy in particular will be absolutely rocked by the removal of expert agencies’ ability to interpret and navigate statutes. People needing medical treatment will be left in a state of uncertainty and instability, and this will land the hardest on the most vulnerable among us.