DREW: This is Drew (ph) from North Carolina. I'm about ready to go take my final exam during my first year at medical school. I just want to remind everybody that even though you might be older, like me at 45, you can still go back to school and chase your dreams. This podcast was recorded at...
ASMA KHALID, HOST:
1:12 p.m. Eastern time on Thursday, June 13 of 2024.
DREW: Things may have changed since it was recorded, but I am going to be on the beach tomorrow enjoying the sun.
(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")
KHALID: I love that.
CARRIE JOHNSON, BYLINE: So impressed. So impressed.
SELENA SIMMONS-DUFFIN, BYLINE: It's very cool.
JOHNSON: Very inspirational stuff.
KHALID: Hey, there, it's THE NPR POLITICS PODCAST. I'm Asma Khalid. I cover the White House.
JOHNSON: I'm Carrie Johnson. I cover the Justice Department.
KHALID: And today on the show, the Supreme Court's decision to uphold access to the abortion medication known as mifepristone. And to help us make sense of this news, we are joined by a very special guest, my old friend, Selena Simmons-Duffin, who covers health policy for NPR. It is wonderful to have you with us.
SIMMONS-DUFFIN: Thank you, Asma.
KHALID: So the Supreme Court unanimously rejected this challenge to prescribing and dispensing abortion pills. And Carrie, it felt surprising to me, frankly, to hear that this was a unanimous decision because it feels like everything out of the courts is hyper-partisan. Can you help us make sense of why this decision was unanimous and what it was about?
JOHNSON: Absolutely. It's not that complicated. What the unanimous court found in a decision written by Justice Brett Kavanaugh is that these plaintiffs, who were seeking to challenge the FDA regime for this medication mifepristone had no standing, that they had suffered no injury. These were, in large part, medical doctors who did not prescribe the drug and had no relationship to it, really.
And the court majority basically found you need to have a personal stake, you need to have suffered some kind of physical injury or economic injury in order to bring your case to court. Otherwise, it would just be a bunch of people roaming around the country in search of government wrongdoing, really injecting the courts into every possible dispute in the country. That is not what the courts are for, Justice Kavanagh found.
KHALID: So to be clear, it sounds like they sidestepped any questions about the abortion issue itself.
JOHNSON: No ruling on the merits, no ruling on the substance. These people could not get through the courthouse door because this was not a case or a controversy. They did not have the legal right to sue.
KHALID: Got it. Selena, I want to ask you more about the medication at hand that we're talking about. We mentioned mifepristone. What is it, and how big a part of abortion care is it in the United States?
SIMMONS-DUFFIN: It's huge. It's used for almost two-thirds of all abortions in the country. So it's a two-drug regimen for medication abortion. First, you take mifepristone, and then you take misoprostol. And those two drugs together account for, as I said, 63% of abortions in the country. It's been approved since 2000, so more than two decades of use. The FDA says more than 5 million Americans have used this drug. Its safety profile, you know, is very impressive. And so the objections against it have been a little specious when they try to point to, like, medical or scientific reasons for not making this drug available.
JOHNSON: The practical effect of today's decision by the Supreme Court is that it leaves in place the patchwork system we've been operating under since the court overturned the precedents in Roe and Planned Parenthood v. Casey a couple of years ago. So there are, like, 14 states that have a near total abortion ban, and these medications would not be legally available there, but they would remain available in the other places. And, you know, as the Justice Department pointed out today, this kind of regulatory structure has been in place for over 20 years, and it's been in place through five different presidential administrations, so it would have been a really remarkable and extraordinary thing for the court to have gone the other direction in this case.
KHALID: After the FDA's regulatory process, yeah.
SIMMONS-DUFFIN: And just to build on that. The pharma industry was very nervous about this case and issued amicus briefs saying, like, courts do not start questioning the FDA's decision-making authority over the approval of drugs. You could have a doctor who says, I'm morally opposed to Viagra, and so, therefore, I will sue to remove Viagra from the market. Like, that's the slippery slope argument that drugmakers and others in the pharma industry were making. And so they also put their heft behind keeping this status quo in place in this case.
KHALID: Is there any sign that you took from today's decision that the court is aware of the political pressure on this issue, not just on the FDA regulation aspect of this, but we're talking about abortion and reproductive rights, which we know has become a huge political issue?
JOHNSON: I think the way politics came into this case was that this case was filed in the Northern District of Texas, and it was heard by a judge, lower court Judge Matthew Kacsmaryk, who has a record of being very anti-abortion. And so he basically took the step of granting these plaintiffs' request and had to be tamped down in part by the very conservative Fifth Circuit Court of Appeals, which agreed with him in part and disagreed with him in part.
And the consequences were so great for the country that the Supreme Court had to step in and issue a stay because to have gone the way that these plaintiffs wanted to go, and Judge Kacsmaryk would have wanted to go, would have been a nuclear bomb basically for the availability of this medication. And so this case was such an outlier that it doesn't say as much about what the Supreme Court wants to do or doesn't want to do. It's more about the fact that this lower court judge was so outside of the mainstream in his ruling, in my view.
KHALID: All right. I've got a lot more questions, but let's take a quick break, and we'll be back in a moment.
And we're back. And I want to ask you both, if we can, a little bit more about the politics here of this moment because very quickly after the Supreme Court's decision came out, we saw statements from President Biden and from Vice President Harris, essentially warning that Republicans will continue to attack access to medication abortion. And I want to know from you. Let's start with you, Carrie. Specifically, are these threats real? Like, are there real legal threats, or is this election year fear-mongering?
JOHNSON: People who want to restrict access to medication abortion very much view this as round two. They are not going to stop. In fact, three states tried to intervene in this particular case. They are Missouri and Idaho and Kansas. The Supreme Court didn't deal with their concerns and their claims, but this case could then go back to the lower court judge in Texas, and so those three states could advance arguments before that judge on the same set of issues or similar issues.
And then, of course, there are other efforts to restrict access to medication abortion, including something that people aligned with former president and current GOP frontrunner Donald Trump had been saying. They want to basically revive an 1800s-era law that would make it illegal to ship these pills in the mail. That is a key issue on the table in the election, I think.
SIMMONS-DUFFIN: I would just say it seems to me like the justices are really sidestepping the substance here about abortion and whether abortion access should be available via telemedicine, via the mail, as easy and convenient as it has become at this point. It's - both sides are saying that this is not the end of things. So Erin Hawley, the attorney for Alliance Defending Freedom who argued the case before the justices, said today in a statement to reporters that we still have work to do. And she says that the case was tossed out on a legal technicality, and they didn't weigh in on the merits, and so ADF is encouraged and hopeful that the FDA will be held to account.
And on the other side, I've talked to OBs today who say the status quo, as they see it, is not awesome, right? You know, there's, as Carrie mentioned, 14 states that banned abortion, more than half states that have severe restrictions, plenty of restrictions, still, you know, being worked out in state houses around the country. So as reproductive rights advocates see it, this is, like, an obvious decision, and it could have been more disastrous, but it's still not a huge win. Nobody's celebrating exactly.
JOHNSON: And I point out that Justice Kavanaugh, in his opinion for the court, basically said, listen, if you have sincere moral and religious objections to abortion and the use of these pills, then maybe you should go to the FDA. Maybe you should go to Congress. Maybe you should vote in the next election. And so the fight is ongoing in both the courts and in the political arena.
KHALID: I want to ask you, Carrie, about the legality, though, of other challenges. If this FDA tactic didn't work, what's the other ways in which folks are trying to challenge access to medication abortion?
JOHNSON: There are a number of them. In this particular case, there are three states - Missouri, Idaho and Kansas - who tried to weigh in. The Supreme Court didn't hear their claims, but they're going to try to weigh in at the lower court level in Texas to say that some of those states have near abortion bans and maybe they have different issues that they can present that would be more attractive to courts and present the kinds of injuries the Supreme Court did not find in this particular case. There's also, of course, a case we're waiting to hear a decision on from the Supreme Court that involves hospitals that receive federal funding and emergency medical care. That dispute out of Idaho basically raises questions about the kind of care that emergency physicians are able to provide if the life of a woman who's pregnant is in danger in some way. We think before July 4, for sure.
SIMMONS-DUFFIN: Just to build off of that, I think what those states are arguing is that when they have bans on abortion in their states, and it is possible, technically, for people in their states to receive abortion pills in the mail and still have abortions, that affects their ability to enact the ban. The FDA's regulatory process was the focus of this particular challenge and it was a very careful process 'cause it was under so much scrutiny from the beginning. And it does also have this 20-year, real-life history of safety. So that was a tough one, but certainly, there are going to be other ways, other legal avenues for trying to either take mifepristone out of the picture completely or at least tamp down on the availability.
KHALID: So last question before I let you all go today. It sounds like both of you are saying that this decision doesn't really turn down the temperature at the court at all, and turn down the temperature specifically on issues of access to abortion reproductive rights - right? - these really hot-button political issues. Am I right in interpreting that? You don't think that this changes?
SIMMONS-DUFFIN: Yeah, I talked to an OB today, Louise King, at Harvard Medical School, who's also trained as an attorney. And what she just said is that it's basically a pause in panic. Like, it's a pause button. But nobody thinks that the challenges to mifepristone are over, the challenges to abortion are over. Like, this is a little bit of a momentary break, which is probably helpful because it's an election year and that more is coming. More is coming down the pipe. Absolutely. Nobody questions that.
KHALID: All right, let's leave it there for today. Selena, thank you so much for joining us.
SIMMONS-DUFFIN: Thanks for having me.
KHALID: I'm Asma Khalid. I cover the White House.
JOHNSON: I'm Carrie Johnson. I cover the Justice Department.
KHALID: And thank you all, as always, for listening to the NPR POLITICS PODCAST.
(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")
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