On December 13, 2023, the United States Supreme Court announced it will consider the future of Mifepristone–a pill used for medical abortions. The Supreme Court will decide whether the Food and Drug Administration’s (FDA) 2016 and 2021 approvals were proper or erroneous. The 2016 and 2021 FDA approvals concerned, respectively, the timeline of prescribing the pill and allowing prescriptions of the pill without a supervising physician to administer the drug. Only two years after the Supreme Court overruled Roe v. Wade in Dobbs v. Jackson Women’s Health Organization, it will once again insert itself into the reproductive lives of Americans.
In Dobbs, the Court did not outlaw abortion; rather, it returned the decision on allowing or restricting abortion to the people: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” The Dobbs Court concluded that the people have the final say in abortion access via the ballot box. Yet it seems that the Supreme Court may have changed its mind, as it will once again consider the accessibility of abortion. If abortion should be left to the people, the states, and democracy, then the Supreme Court should not be inserting itself in the Mifepristone case. The Supreme Court now has two options. On one hand, the Court can affirm Dobbs and the right to allow or restrict abortion on the state level. Alternatively, the Court can overrule Dobbs and claim states only have the right to restrict abortion, but not expand abortion protections. The Court cannot do both; finding that the 2016 and 2021 approvals were arbitrary would mean that the Court can declare when and how abortion rights can be curtailed, but not when and how they can be expanded.
Justice Clarence Thomas was the only Justice on the Supreme Court who showed his true motivations in Dobbs. In his concurring opinion, he agreed with the majority that the Dobbs decision does not affect any other substantive due process rights that the Court has recognized. However, he wrote that “in future cases, we should reconsider all of this Court’s substance due process precedents, including Griswold,” the 1965 decision where the Supreme Court found a constitutional right against state restrictions on contraceptive devices. Concurring, Justice Goldberg asked, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive…” Justice Thomas’ concurrence in Dobbs indicates that he does not find the policing of reproductive rights repulsive. The Supreme Court now has the opportunity to transform Justice Thomas’ concurrence into a majority opinion.
Furthermore, Griswold declared that “forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship.” This year, the Court might argue they are not banning Mifepristone but regulating it, arguing that Griswold allows such action. Yet, the states are likewise deciding on their manufacture and sale. When the Court makes its decision, it will have a difficult time convincing the public that that they are upholding Griswold by simply regulating Mifepristone. That would make the decision obsolete. Regulating the pill alongside states would overtake the ideals of federalism and ignore the Political Question Doctrine, stripping the independence of the three branches of government. Therefore, the Court could strike down the FDA’s 2016 and 2021 approvals of Mifepristone and defend its decision by overruling Griswold, stripping Americans of yet another right they have come to recognize for nearly 60 years.
There are some who might point to the majority opinion in Dobbs, which specified that Griswold is safe: “we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” After all, one rogue justice does not make binding decisions. However, Mifepristone does concern both abortions and contraception. The Court is entering a gray area where two cherished rights remain in peril. This case concerns contraception, just as much as it does abortion. The accessibility of Mifepristone can create grounds for the Court to allow states to invalidate FDA approved drugs, arguing that similar to the right to abortion, the right to contraception does not explicitly exist in the Constitution. Additionally, the Court can tie Mifepristone to pills used in preventing pregnancies, such as the morning-after-pill, in allowing states to restrict certain approved drugs used for reproductive health. (Mifepristone induces abortions in contrast to preventing pregnancies.) Even without an overt overruling of Griswold, the Court can allow states an opportunity to skirt contraception protections under the guise of abortion bans and protecting potential life.
The Supreme Court’s wording in Dobbs does not assuage fears that Griswold is in danger. The six conservative justices can easily re-write the American story, remove rights recognized for generations, and input their religious views–as they did in Dobbs. In Linda Greenhouse’s words, “we can no longer write off [Justice Thomas’ invitations and] predictions as dystopian fantasies.”[1] Another cherished right is in jeopardy and can soon bite the dust.
[1] Linda Greenhouse, Justice on the Brink: A Requiem for the Supreme Court (2022).
About the Author
Nazo Demirdjian is a family law attorney based in Las Vegas, Nevada. He earned his Juris Doctorate from UNLV's William S. Boyd School of Law, his master's degree from the University of Chicago, and his bachelor's degree from the University of California, Berkeley.