CT Mirror | Supreme Court abortion pill ruling cheered in CT, but worries persist

By Lisa Hagen and Katy Golvala | Originally Published by the Connecticut Mirror

Reproductive rights advocates and Democratic state officials across Connecticut applauded the U.S. Supreme Court for upholding access to abortion medication in its Thursday decision, but they also warned of future legal threats to limit abortion since Roe v. Wade was overturned.

In a unanimous opinion penned by Justice Brett Kavanaugh, the Supreme Court ruled against restricting expanded access to mifepristone, a commonly used abortion pill. The justices dismissed the case based on legal standing — whether a party can bring a lawsuit before court and prove it has or will suffer an injury.

“While today we breathe a sigh of relief, the court has left the door open to future litigation. And we know and recognize that anti-abortion extremists are not stopping their attacks anytime soon as they attempt to restrict and ban abortion in all 50 states,” said Liz Gustafson, Connecticut state director for Reproductive Equity Now, an organization advocating for reproductive rights in New England.

The “FDA v. Alliance for Hippocratic Medicine” was the first major abortion-related case to come before the Supreme Court since the 2022 landmark ruling that overturned nationwide abortion protections under Roe v. Wade and put the issue of access to the states.

Mifepristone is taken with misoprostol to end a pregnancy. The FDA first approved the drug in 2000. Data from a 2023 study found medication abortions are used in well over half of abortions in the U.S., with the numbers increasing since 2020 in the wake of the pandemic and more states passing laws with abortion restrictions. In 2021, there were 9,562 abortions performed in Connecticut. Of those, nearly 64% were medication abortion using mifepristone.

Since then, the FDA has expanded access to the medication through two regulations. A 2016 rule lowered the dosage and administration of mifepristone and extended its use from seven to up to 10 weeks of pregnancy. And in 2021, during the pandemic, the agency allowed certified pharmacists to dispense it and approved mail-order delivery through telehealth appointments.

Based on oral arguments in March before the justices, state leaders in Connecticut and Washington had anticipated the likelihood of a dismissal of the case based on standing or a narrow ruling on pill access.

But Gustafson said she expects the fight for mifepristone access to continue, both in the courts and, depending on the result of the November presidential election, in the administration.

“Donald Trump poses an existential threat to reproductive freedom and bodily autonomy. And, if elected, Trump could also appoint an FDA commissioner that could gut mifepristone access from the inside,” she said.

State Attorney General William Tong had joined several multi-state challenges to the Alliance Defending Freedom case. Tong, like other Democrats in the state, still worries about attempts to further limit abortion even as it is currently protected in Connecticut.

“Medication abortion is safe, legal and accessible in Connecticut. That was true before today, and following this decision, it will stay that way. But let’s not think for one second that this threat is going away,” Tong said in a Thursday statement.

“Anti-choice radicals are combing this decision as we speak and have already started the process of coming back with new plaintiffs,” he continued. “We will fight back at every single step along the way to protect the rights of patients and providers to live their lives and do their jobs free from extremist political micromanagement.”

Gov. Ned Lamont and Lt. Gov. Susan Bysiewicz issued similar statements, saying they will “use every tool” available to protect reproductive rights in Connecticut.

“While today’s decision is good news, we must remain vigilant, as the Supreme Court has left the door open for other plaintiffs, who may allege harm, to bring similar actions,” Bysiewicz said.

“This case was never about safety, it was about controlling people’s medical decisions and their ability to decide when they should start a family. But we must recognize that this will not be the last attempt by politicians to interfere in reproductive health care. As long as I am in office, I will use every tool in my power to fight for the ability of patients and their doctors to make their own reproductive health care decisions.”

While Republicans lawmakers have largely been silent in the hours since the Supreme Court’s decision, anti-abortion groups have expressed disappointment about the ruling. Groups like Susan B. Anthony Pro-Life America said that “the fight to stop dangerous mail-order abortion drugs is not over,” adding that they support the state attorneys general in Idaho, Kansas and Missouri who have joined the lawsuit, which returns to the lower courts.

In the Thursday ruling, the justices concluded that the plaintiffs would not suffer an injury based on the FDA’s rules, adding that they could instead bring those concerns through the regulatory process, federal legislation that Congress could consider and the “political and electoral processes.”

“The plaintiffs have sincere legal, moral, ideological, and policy objections to elective abortion and to FDA’s relaxed regulation of mifepristone. But under Article III of the Constitution, those kinds of objections alone do not establish a justiciable case or controversy in federal court,” Kavanaugh wrote in the majority opinion.

“Here, the plaintiffs have failed to demonstrate that FDA’s relaxed regulatory requirements likely would cause them to suffer an injury in fact. For that reason, the federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions,” he continued.

In a concurring opinion, Justice Clarence Thomas detailed why he believes the plaintiffs lack standing in this case, while also calling on the court to “explain just how the Constitution permits associational standing.”

“As I have previously explained, a plaintiff cannot establish an Article III case or controversy by asserting another person’s rights,” Thomas wrote. “So, just as abortionists lack standing to assert the rights of their clients, doctors who oppose abortion cannot vicariously assert the rights of their patients.”

Before the case made its way to the high court, U.S. District Judge Matthew Kacsmaryk issued a decision invalidating the FDA’s approval of the pill, but an appeals court ruled Mifepristone should remain accessible — but with limitations on obtaining the pill by mail and telehealth prescribing.

In March, the justices heard oral arguments in a case challenging the FDA regulations of Mifepristone. Much of those arguments revolved around legal standing. Based on the questioning, many of the justices sounded skeptical of the anti-abortion doctors’ lawsuit against the FDA regulations surrounding mifepristone.

U.S. Solicitor General Elizabeth Prelogar, who represented the FDA, argued that the lawsuit could “unnecessarily restrict access” to mifepristone and could lead to more women going through invasive abortion procedures.

Anti-abortion doctors sought to challenge the FDA’s regulations. Erin Hawley, a lawyer with Alliance Defending Freedom, representing the doctors and some medical groups, raised concerns about the safety of mifepristone and doctors who may need to assist with the complications of taking the medication that violate their conscience.

Federal conscience statutes are in place to protect health care providers who do not want to help with medical services because of religious or moral reasons.

“We are disappointed that the Supreme Court did not reach the merits of the FDA’s lawless removal of commonsense safety standards for abortion drugs,” Hawley said after the ruling.

“While we’re disappointed with the court’s decision, we will continue to advocate for women and work to restore commonsense safeguards for abortion drugs — like an initial office visit to screen for ectopic pregnancies. And we are grateful that three states stand ready to hold the FDA accountable for jeopardizing the health and safety of women and girls across this country,” Hawley added.

In Connecticut, state Rep. Jillian Gilchrest, D-West Hartford, celebrated the ruling but also said it is important that Connecticut continue to expand protections for reproductive care.

In the last General Assembly session, the Public Health Committee passed a bill aimed at protecting reproductive care providers at religiously affiliated hospitals. It would have, among other provisions, prevented health care entities from limiting physicians from discussing or providing reproductive or gender-affirming services. However, the measure ultimately failed to gain traction in the broader legislature.

“It became very apparent at the public hearing that providers who work in those institutions just don’t know if they can talk about birth control or mention that abortion is an option,” Gilchrest said. “So we just want it to be clear that a provider can practice within their scope of practice at any health care facility in the state.”

Another proposal last session to enshrine the right to an abortion, among other things, in the state’s Constitution failed to pass. Gilchrest said legislators ultimately could not agree on the scope of the bill, including whether it should specifically address access to care or also address issues like privacy protections.