Supreme Court Abortion Pill Decision Has Little Effect In W.Va.

In the first case of its kind since the overturn of Roe v. Wade, the U.S. Supreme Court on Thursday dismissed a challenge to the Food and Drug Administration’s (FDA) rules for prescribing and dispensing a medication widely used in abortions.

Mifepristone was first approved by the FDA in 2000, and the agency required the drug to be prescribed in person, over three visits to a doctor. Since 2016, the FDA eased restrictions, allowing patients to obtain prescriptions through telemedicine appointments, and to get the drug by mail.

Mifepristone is used in conjunction with Misoprostol for medical abortions and can be taken at home to terminate a pregnancy.

The drug is currently approved for use up to 10 weeks’ gestation and is often used to treat patients who are having a medically difficult miscarriage, accounting for more than half of abortions in the U.S.

The suit was brought by the Alliance for Hippocratic Medicine, which argued the FDA had overlooked the risks of Mifepristone.

They also argued that the FDA depends on emergency room doctors to be a crucial component of the mifepristone regimen, as the treating physician in the event of complications.

“According to the doctors, when they treat women who are experiencing complications after taking mifepristone, they are required to perform or complete an abortion, or otherwise required to participate in a process that facilitates abortion,” the filing states. “They maintain that personally conducting those procedures violates their sincerely held moral beliefs.”

The court agreed unanimously that the organization failed to show the Alliance or its members had suffered any “concrete injury” and therefore had no right to be in court.

In West Virginia, abortion has been banned, with few exceptions, since lawmakers passed the Unborn Child Protection Act in Sept. 2022, shortly after the overturn of Roe v. Wade. 

A person who can become pregnant is legally able to obtain an abortion in West Virginia if the pregnancy is the result of rape or incest. An abortion may also be allowed to save the pregnant person’s life or preserve their physical health or if the fetus is not expected to survive the pregnancy.

Sean Tu is a nationally recognized expert on patent and drug law, as well as a professor at the West Virginia University College of Law. He said these drugs are safe, effective and have been used for decades.

“Access here in West Virginia is fairly limited,” Tu said. “I don’t have data to support this, but my intuition is that a lot of the abortions that are being carried out in the state are probably through these chemical abortions.”

Tu said these medications will likely face further legal challenges since the court ruled not on medical merit, but on the basis that the Alliance is not the correct party to bring the suit.

“In this case, they just basically said, procedurally, ‘You are not the right group of people to bring this case,” Tu said. “So what do I think is going to happen? I think state attorneys general are going to start bringing these cases.”

Appalachia Health News is a project of West Virginia Public Broadcasting with support from Marshall Health.