While Utah Supreme Court justices weigh whether the state’s constitution allows for a near-total abortion ban, Attorney General Sean Reyes is pushing the U.S. Supreme Court to restrict medication abortion not just in the Beehive State — but nationwide.
The same justices who overturned the federal constitutional right to an abortion in Dobbs v. Jackson Women’s Health Organization, handing policymaking over to states, heard arguments Tuesday in FDA v. Alliance for Hippocratic Medicine, a case that could result in tightened access to mifepristone, a pill used in medicated abortions.
Under the direction of Reyes, Utah signed onto a friend-of-the-court brief with 20 other states urging justices to roll back abortion pill access.
“The FDA has adopted a nationwide elective-abortion regime,” the brief reads. “It has extended that regime deeper into pregnancy, with even fewer guardrails, and despite abortion’s unique challenges.”
Reyes Amicus by Jeff Parrott on Scribd
The case, brought by a newly-formed anti-abortion group called Alliance for Hippocratic Medicine, challenges the U.S. Food and Drug Administration’s 2000 approval of mifepristone, the first drug in a medicated abortion, as well as more recent rule changes widening where people can access it and making it available later in a pregnancy.
The drug is primarily used for abortions, but is also prescribed to manage miscarriages. While it isn’t immediately clear how many Utahns take mifepristone for the latter purpose, according to the most recent abortion data released by the state, more than half of the nearly 3,000 abortions provided in the state in 2021 were done using medication.
Under the FDA, Mifepristone is currently approved for use up to 10 weeks into a pregnancy. Taking mifepristone for an abortion is widely considered by medical professionals to be safe, and complications are rare.
Abortion is legal up to 18 weeks in Utah as a trigger law passed in 2020, which bans abortion with limited exceptions, makes its way through the courts. Republican state lawmakers have taken multiple actions to try to speed up and circumvent that legal process.
(Emily Anderson Stern | The Salt Lake Tribune) People attend an anti-abortion prayer meeting at the Utah Capitol Sunday, Aug. 6, 2023.
The brief Reyes signed accuses the FDA of going around abortion restrictions passed in multiple states, including Utah.
“Under the Constitution, States have the primary authority to protect health, safety, and welfare,” the brief says. “Using that power, many States have regulated and restricted abortion — including chemical abortion. Yet the FDA has greenlighted a permissive elective-abortion policy — undercutting States’ laws, thwarting States’ ability to enforce them, and hobbling the interests that those laws serve.”
But a coalition of 22 Democratic governors penned their own brief, saying a ruling restricting mifepristone access would do just that — undercut states’ laws. Voters in some of those states have approved ballot measures protecting abortion access.
Three of Utah’s five-member congressional delegation — Sen. Mike Lee, Rep. Blake Moore and Rep. John Curtis — joined a separate brief also asking the court to impose more limits on mifepristone.
“As pro-life elected representatives, Amici are committed to protecting women and adolescent girls from the harms of the abortion industry,” their brief says. “By deregulating chemical abortion drugs, the FDA failed to follow Congress’ statutorily prescribed drug approval process to the detriment of patient welfare.”
Both briefs cite the Comstock Act — a 19th-century federal law that has been watered down over the years, but still includes language outlawing Americans from mailing any “article or thing designed, adapted, or intended for producing abortion.” That statute has also been used in plaintiffs’ arguments and in efforts to prohibit abortion in towns bordering Utah and other states with abortion restrictions.
Although federal agencies have said they don’t interpret the code to criminalize abortion, abortion rights advocates worry the 150-year-old law could be relied on to implement a nationwide abortion ban.
As this case has made its way through the courts, anti-abortion group Pro-Life Utah on Facebook hailed a potential court-ordered crackdown on mifepristone as “good news.”
The action arm of Planned Parenthood Association of Utah, meanwhile, urged supporters in a social media post earlier this month to sign onto a separate amicus brief to protect access to mifepristone, and “stop Sean Reyes from playing games with people’s personal medical decisions.”
Tuesday’s oral arguments were streamed on the U.S. Supreme Court’s website.
