The Abortion Case the Supreme Court Has Been Waiting For?

This past week, Louisiana’s Attorney General filed a lawsuit, Markezich v. FDA, challenging the distribution of medication abortion to patients without an in-person doctor’s appointment.^[1]  When the Supreme Court rejected a challenge to the Food and Drug Administration’s (“FDA’s”) approval of mifepristone in 2024, it was considered a setback for the anti-abortion movement.^[2]  Markezich confronts the FDA’s approval of telehealth, and the Supreme Court could rule differently this time because of key differences in standing.^[3]

Mifepristone (also known by its brand names Korlym and Mifeprex) is part of an oral regimen with misoprostol to end a pregnancy that is within its first ten weeks.^[4]  The medication works by blocking the usual flow of hormones to the uterus, stopping the pregnancy from developing.^[5]  Medication abortion, including mifepristone, was first approved in 2000 and was a significant step toward access to early abortions.^[6]  The approval of mifepristone (and medication abortion generally) creates a “self-managed” alternative for those who either cannot or do not want to go to an in-person provider.^[7]  Moreover, mifepristone is extremely safe; as of 2016, it had a ninety-nine percent safety rate.^[8]

Medication abortion has become the most commonly used method of abortion in the United States, likely in response to increasingly restrictive state-level laws.^[9]  Currently, twenty-one states have either outlawed abortion entirely or enacted laws that are incredibly hostile to abortion access.^[10]  Following Dobbs v. Jackson Women’s Health Organization, which overturned a nationally protected right to abortion, the FDA lifted prior restrictions requiring abortion pills to be obtained at a pharmacy.^[11]  This regulatory change permitted patients to obtain medication abortions through telehealth appointments and to receive the pills by mail.  In 2023, medication abortions accounted for approximately 63% of abortions within the formal U.S. healthcare system.^[12]  This number does not include self-managed medication abortions, though there is significant evidence that those have increased since Dobbs as well.^[13] The approval of telehealth appointments and mailing abortion pills has expanded access for many who might otherwise be unable to safely terminate pregnancies.^[14]

The relief was short-lived.  Following Dobbs in November of 2022, a group of anti-abortion healthcare professionals known as the Alliance for Hippocratic Medicine filed a suit to rescind the FDA’s approval of mifepristone in its entirety.^[15]  In April 2023, a federal district court in Texas ruled in favor of the Alliance for Hippocratic Medicine.^[16]  Justice Kacsmaryk found that the Alliance was likely to succeed on the merits of its claims under the Comstock Act  and the Administrative Procedure Act challenging the FDA’s approval of mifepristone and its telehealth policies, and he issued an order staying the FDA’s approval of the drug.^[17]  

Shortly after, the Fifth Circuit issued a decision vacating the district court’s judgment as to the stay of the FDA’s general approval, and affirmed the district court’s judgment as to the newer and looser regulations the Alliance also challenged—essentially requiring the FDA to reinstate previous, burdensome restrictions on the drug while declining to remove mifepristone from the market altogether.^[18]

Ultimately, the Supreme Court ruled that the Alliance for Hippocratic Medicine lacked standing to bring this case.^[19]  The Court granted cert to the FDA’s appeal from the Fifth Circuit decision on December 13, 2023, and oral arguments were held the next March.^[20]  The majority found that the Alliance for Hippocratic Medicine did not have suitable theories of injury or causation to warrant Article III standing.^[21]  “To establish standing, a plaintiff must demonstrate (i) that she has suffered or likely will suffer an injury in fact, (ii) that the injury likely was caused or will be caused by the defendant, and (iii) that the injury likely would be redressed by the requested judicial relief.”^[22]  Here, the majority notes that the plaintiffs do not “prescribe, manufacture, sell or advertise mifepristone,” and are not actually alleging an injury to themselves.^[23]  Furthermore, the plaintiffs assert theories that the FDA’s “relaxed” regulation of mifepristone causes conscience injuries and economic injuries to individual doctors as well as injuries to medical associations as a whole.^[24]  The majority refutes that any of these theories are well founded enough to establish standing.^[25]  They also state that “a plaintiff’s desire to make a drug less available for others does not establish standing to sue.”^[26]  It is notable, however, that this case was not decided on the merits.^[27]  A refusal to ban mifepristone in a case brought by plaintiffs who lack standing is not a sign of moderation on abortion issues for this Court; it is merely a delay in addressing the merits until a plaintiff with standing brings a similar case.^[28]

 The Louisiana Attorney General’s case may provide the Supreme Court’s majority with an opportunity to reach the merits of the underlying statutory and constitutional questions that they declined to address in FDA v. Alliance for Hippocratic Medicine.^[29]  Liz Murrill, Louisiana’s Attorney General, is no stranger to bringing federal suits in an attempt to limit abortion; she’s previously indicted a New York doctor for prescribing and sending abortion pills to a patient in Louisiana.^[30]  Murrill brings the Louisiana case on behalf of Rosalie Markezich, a Louisiana woman who says she was coerced into taking abortion pills her boyfriend procured from a doctor in California.^[31]  Murrill intends to directly challenge the FDA’s telehealth approval of mifepristone and medication abortion.  At first glance, this case appears to address several of the Article III standing issues that FDA v. Alliance for Hippocratic Medicine presented, particularly with respect to injury and causation.^[32]  Here, Markezich alleges a concrete injury—the alleged coerced termination of her pregnancy—and attempts to link that injury to the FDA’s telehealth regulation,^[33] distinguishing her standing argument from that of the Alliance for Hippocratic Medicine.  If accepted, this theory could allow the Court to reach the merits and potentially restrict the distribution of mifepristone without in-person appointments.

Reversing the FDA’s rule allowing for telehealth appointments and mail distribution of mifepristone would significantly curtail access to medication abortion, compounding the already substantial barriers many Americans face in obtaining legal abortions.  Roughly two in five American women live in a state where abortion is inaccessible.^[34] Revoking the FDA’s approval of prescribing medication abortion through telehealth appointments would be particularly hard on lower-income patients.  Healthcare is already expensive, and travel only adds unnecessary costs and stresses.  While it is still early in this case’s procedural posture, legislators should start acting immediately to protect provisions for telehealth providers and for abortion medication by enshrining the FDA’s regulations in law.

^[1] Greg LaRose, Louisiana Sues Food & Drug Administration to Stop Mailing of Abortion Medication, LA. ɪʟʟᴜᴍɪɴᴀᴛᴏʀ (Oct. 9, 2025), https://lailluminator.com/2025/10/09/fda-abortion [https://perma.cc/9T2U-XQKH].

^[2] FDA v. All. for Hippocratic Med., 602 U.S 367 (2023); Tierney Sneed & John Fritze, Supreme Court Rejects Challenge to Abortion Pill Mifepristone, Allowing Drug to Stay on the Market, ᴄɴɴ,

https://www.cnn.com/2024/06/13/politics/supreme-court-rejects-challenge-abortion-pill-mifepristone (last updated June 13, 2024) [https://perma.cc/AN6K-M9UH].

^[3] LaRose, supra note 1.

^[4] ᴍᴀʏᴏ ᴄʟɪɴɪᴄ, Mifepristone (Oral Route), https://www.mayoclinic.org/drugs-supplements/mifepristone-oral-route/description/drg-20067123 (last updated Feb. 1, 2026) [https://perma.cc/BUY7-JL6K].

^[5] Id.

^[6] Heather D. Boonstra, Mifepristone in the United States: Status and Future, ɢᴜᴛᴛᴍᴀᴄʜᴇʀ ᴘᴏʟ’ʏ ʀᴇᴠ. (Aug. 2002), https://www.guttmacher.org/gpr/2002/08/mifepristone-united-states-status-and-future?gad_source=1&gad_campaignid=23142694989&gbraid=0AAAAAD-Q3toHgFql2SYitb5MeIIrmbnqy&gclid=CjwKCAjw6vHHBhBwEiwAq4zvA7PTQHR2vnyJUYA0YXgr3lQWTOmf-exEYptle2NQ2z1-GE_d4wr_ORoCVm0QAvD_BwE [https://perma.cc/B5RW-ZXR3].

^[7] Megan K. Donovan, Improving Access to Abortion via Telehealth, ɢᴜᴛᴛᴍᴀᴄʜᴇʀ ᴘᴏʟ’ʏ ʀᴇᴠ. (May 16, 2019), https://www.guttmacher.org/gpr/2019/05/improving-access-abortion-telehealth [https://perma.cc/X8A5-Q5FA].

^[8] ᴀᴅᴠᴀɴᴄɪɴɢ ɴᴇᴡ ꜱᴛᴀɴᴅᴀʀᴅs ɪɴ ʀᴇᴘʀᴏᴅᴜᴄᴛɪᴠᴇ ʜᴇᴀʟᴛʜ, ꜱᴀꜰᴇᴛʏ ᴀɴᴅ ᴇꜰꜰᴇᴄᴛɪᴠᴇɴᴇss ᴏꜰ ꜰɪʀsᴛ-ᴛʀɪᴍᴇsᴛᴇʀ ᴍᴇᴅɪᴄᴀᴛɪᴏɴ ᴀʙᴏʀᴛɪᴏɴ ɪɴ ᴛʜᴇ ᴜɴɪᴛᴇᴅ ꜱᴛᴀᴛᴇs (Aug. 2016), https://www.ansirh.org/sites/default/files/publications/files/medication-abortion-safety.pdf [https://perma.cc/3RJE-ZC63].

^[9] Abigail R. A. Aiken, Jennifer E. Starling, James G. Scott & Rebecca Gomperts, Requests for Self-managed Medication Abortion Provided Using Online Telemedicine in 30 US States Before and After the Dobbs v Jackson Women’s Health Organization Decision, JAMA (Nov. 1, 2022), https://jamanetwork.com/journals/jama/fullarticle/2797883#248667616 [https://perma.cc/4UX6-NHZZ].

^[10] After Roe Fell: U.S. Abortion Laws by State, ᴄᴛʀ. ꜰᴏʀ ʀᴇᴘʀᴏᴅ. ʀᴛs. https://reproductiverights.org/maps/abortion-laws-by-state (last updated Feb. 2026) [https://perma.cc/X9LD-BMBG].

^[11] Dobbs v. Jackson Women's Health Org., 597 U.S. 215 (2022); FDA, Questions and Answers on Mifepristone for Medical Termination of Pregnancy Through Ten Weeks Gestation, https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/questions-and-answers-mifepristone-medical-termination-pregnancy-through-ten-weeks-gestation (last updated Feb. 2, 2025) [https://perma.cc/6KKA-7C6H].

^[12] Rachel K. Jones & Amy Friedrich-Karnik, Medication Abortion Accounted for 63% of All US Abortions in 2023—An Increase from 53% in 2020, ɢᴜᴛᴛᴍᴀᴄʜᴇʀ: ᴘᴏʟ’ʏ ᴀɴᴀʟʏꜱɪꜱ (Mar. 19, 2024), https://www.guttmacher.org/2024/03/medication-abortion-accounted-63-all-us-abortions-2023-increase-53-2020 [https://perma.cc/9YSR-MU7P].

^[13] Aiken et al., supra note 9.

^[14] Donovan, supra note 7.

^[15] Alliance for Hippocratic Medicine v. FDA, ᴄᴛʀ. ꜰᴏʀ ʀᴇᴘʀᴏᴅ. ʀᴛs., https://reproductiverights.org/case/alliance-for-hippocratic-medicine-v-fda [https://perma.cc/UKE3-57Y6].

^[16] All. for Hippocratic Med. v. FDA, 668 F. Supp. 3d 507, 539 (N.D. Tex. 2023).

^[17] Id at 539.

^[18] All. for Hippocratic Med. v. FDA, 78 F.4th 210, 222-223 (5th Cir. 2023).

^[19] See generally FDA v. All. for Hippocratic Med., 602 U.S. 367 (2024).

^[20] FDA v. All. for Hippocratic Med., 602 U.S 367 (2023).

^[21] All. for Hippocratic Med., 602 U.S. at 372.

^[22] Id. at 380.

^[23] Id. at 385.

^[24] Id. at 386

^[25] Id.

^[26] Id. at 372.

^[27] Id.

^[28] Article III—Standing—Comstock Act—FDA v. Alliance for Hippocratic Medicine, 156 ʜᴀʀᴠ. ʟ. ʀᴇᴠ. 295, 299 (2024).

^[29] All. for Hippocratic Med., 602 U.S. at 372.

^[30] Carter Sherman, Louisiana Investigates New York Doctor for Allegedly Mailing AbortionPpills, ᴛʜᴇ ɢᴜᴀʀᴅɪᴀɴ (May 13, 2025), https://www.theguardian.com/us-news/2025/may/13/louisiana-abortion-pills-ny-doctor-investigation [https://perma.cc/NYA2-2B9W].

^[31] LaRose, supra note 1.

^[32] All. for Hippocratic Med., 602 U.S. at 372.

^[33] LaRose, supra note 1.

^[34] Geoff Mulvihill, Kimberlee Kruesi & Claire Savage, A Year After Fall of Roe v. Wade, 25 Million Women Live in States with Abortion Bans or Restrictions, ᴘʙꜱ (June 22, 2023), https://www.pbs.org/newshour/politics/a-year-after-fall-of-roe-v-wade-25-million-women-live-in-states-with-abortion-bans-or-restrictions [https://perma.cc/63GC-MT7B].