The Supreme Court’s decision to dismiss a challenge to the abortion pill mifepristone means the drug’s future is now firmly tied to the 2024 presidential election.
Anti-abortion groups said they were dealt only a temporary setback by last week’s ruling and are planning the path forward on how best to restrict access or get the drug removed from the market completely.
The court left the door open to other legal challenges, including from a trio of red states in front of the same Trump-appointed federal judge who initially suspended mifepristone’s approval in 2023.
But rather than wait for the courts to decide, a second Trump administration could act unilaterally through executive orders or agency rulemaking to impose strict limits on mifepristone.
“The Supreme Court didn’t take any subsequent challenges off the table,” said Roger Severino, a former Trump administration official in the Department of Health and Human Services.
But at the same time, Severino said the court “has left the ball squarely in the hands of the next administration to restore some semblance of safety to a very dangerous and poorly regulated chemical abortion regime.”
While former President Trump has repeatedly said decisions on abortion are up to the states, former administration officials and advisers have telegraphed their plans for sweeping abortion restrictions, including on mifepristone, should the former president win back the White House in November.
Trump’s vacillating positions frustrated anti-abortion groups early in the campaign, but they have put aside their criticisms to focus on what a second Trump term could do for the anti-abortion movement.
“In a Trump White House, there’d be an immediate clearing of the weaponized HHS, FDA, EPA, that would be day one, and that we would have people who actually prioritize women’s life and health over the abortion industry interests,” said Kristi Hamrick, a strategist at Students for Life of America, referring to the Department of Health and Human Services (HHS), the Food and Drug Administration (FDA) and the Environmental Protection Agency (EPA).
“With the right people in the right agencies, we can have people who are preemptively, proactively protecting women’s lives and health and addressing the harms of these pills,” Hamrick said.
Students for Life is also pushing for the EPA to classify the chemicals in mifepristone as a “forever chemical,” subjecting it to stricter regulations and tracking.
“Abortion water pollution I think is part of the new vanguard of how we address the abortion pill market that this administration set up,” Hamrick said.
There have been no explicit campaign promises from Trump about abortion. The former president for months has evaded taking a direct stance on abortion policy, including on the availability of mifepristone.
During a Time magazine interview in April, Trump said he has “pretty strong views” on the issue and would be making an announcement “probably over the next week.”
But that announcement never came, as the former president walks a tightrope on abortion to avoid making the issue into any more of a political liability for Republicans.
The Biden campaign has been highlighting Trump’s abortion record and was quick to point out that a Trump administration wouldn’t need the Supreme Court to act on mifepristone.
“This case brought on by Donald Trump’s allies was only one tactic and a broader relentless strategy to strip away access to reproductive freedom everywhere in this country,” Biden campaign manager Julie Chavez Rodriguez told reporters after the decision last week. “If Trump regains power in November, Trump’s allies will be ready to deploy their plans to ban abortion access nationwide without the help of Congress or the court.”
Abortion has galvanized Democrats in the nearly two years since the Supreme Court overturned Roe v. Wade, and Trump has struggled with whether to embrace or downplay his role in the decision.
During a closed-door meeting with House GOP lawmakers last week, Trump urged Republicans to talk about abortion in a way that makes sense for their districts.
The former president pushed the issue as a states’-rights matter, backed exceptions for certain circumstances and dubbed the party’s abortion stance as “common sense.”
Anti-abortion advocates have grown increasingly frustrated at the widespread availability of abortion medication, compounded by decisions the FDA made in 2016 and 2021 to eliminate an in-person dispensing requirement and allow pharmacists to dispense mifepristone.
They had hoped the Supreme Court would reimpose restrictions and limit access to the drug. But instead of agreeing with a group of anti-abortion doctors that the FDA overstepped its authority, the justices unanimously ruled on procedural grounds that the plaintiffs did not have standing to sue.
But Severino, who now serves as vice president of domestic policy at the Heritage Foundation, indicated Trump’s allies have plans for what comes next.
“Some [actions] can be done through executive orders, some can be done through rulemaking, and then restoring the pro-life policies President Trump put in place in his first term,” Severino said.
As leader of the HHS Office of Civil Rights, Severino created a division aimed at guarding the religious rights and conscience protections of health care workers.
The Biden administration disbanded that division, but Severino said he thinks the Supreme Court’s decision strengthened federal conscience protection laws, and a new Trump administration will bring the division back to enforce them.
If President Biden wins reelection, anti-abortion advocates acknowledged the path forward will be slower, but they’re still confident they will win in the states and in the courts.
“We’re not taking a linear approach to this. We’re looking at the states, we’re looking at the federal level, we’re looking at attorneys general,” Hamrick said. “And I think there’s a path forward even in those states where the abortion lobby thinks they can hide behind mini-Roes in state constitutions through ballot initiatives.”