Cooper and Stein urge Supreme Court to protect access to medication abortion

Abortion-rights protestors rallied outside the US Supreme Court in Washington, DC on April 15, 2023.(Photo by Probal Rashid/LightRocket via Getty Images)

By Michael McElroy

February 2, 2024

A lawsuit filed by anti-abortion groups could restrict access to the most commonly used form of abortion, and is the biggest fight over reproductive healthcare since the Supreme Court overturned Roe v. Wade.

Gov. Roy Cooper and other governors filed a brief with the US Supreme Court this week, urging it to reject a ruling from a lower court that would restrict access to the abortion medication mifepristone based on misleading, political, and false claims about the safety of the drug.

At issue is whether the courts can overrule the Federal Food and Drug Administration’s regulation of the drug, part of the most common method of abortion, and add medically unnecessary restrictions that would make it harder to get necessary healthcare, even in states where abortion remains legal.

The case is the biggest fight over reproductive healthcare since the Supreme Court overturned Roe v. Wade in 2022.

In the brief, Cooper and the other governors, argued that the lower courts had erred in their rulings and that leaving them in place would “undermine [the] Governors’ ability to provide adequate healthcare services and would have far-reaching implications beyond reproductive healthcare.”

The original lawsuit was brought in 2022 by anti-abortion activists who claimed that the FDA had ignored safety concerns about the drug several times since it first approved it in 2000. Separate suits, which the Supreme Court has merged into one, also argued that the FDA should not have loosened restrictions in 2019 and 2021, when the agency decided, among other things, that the drug could be prescribed via telehealth and be sent through the mail.

The claims that the medication is unsafe, however, are false and not at all born out by evidence.

The FDA conducted several studies before the drug was approved, and many more studies since then, doctors say, have shown it to be safe and effective.

“Mifepristone is one of the safest medications on the market today,” Dr. Katherine Farris, Chief Medical Officer of Planned Parenthood South Atlantic and an abortion provider in Charlotte, told us in 2023.

“It has an insanely low complication rate. It has essentially no side effects, and it is incredibly effective as part of a combination of pills, and it has been more studied than many other medications that are used all the time.”

Every medication has some health risks, and there are some associated with mifepristone. But serious reactions are rare.

There are more risks associated with taking Tylenol, penicillin, and Viagra, studies show, than with mifepristone, Ferris said.

“All of the arguments against that are ridiculous and definitely driven by ideology and not by science,” Ferris said.

In an analysis last year, The New York Times reviewed more than 100 studies tracking any side effects from abortion medication.

“A vast majority of the studies report that more than 99 percent of the patients who took the pills had no serious complications,” The Times wrote.

“More than five million people have used this safe, effective medication since the FDA approved it and this case is an extremist, political attempt to take away women’s freedom to make their own private medical decisions,” Cooper said in a news release Thursday.

A lot of briefs

The governors’ brief was the first of its nature filed by high-profile North Carolinians this week.

On Wednesday, North Carolina Attorney General Josh Stein, along with the attorneys general of 24 other states, filed a separate brief with the Supreme Court arguing that the lower courts had issued “poorly reasoned rulings” that were “based upon respondents’ anecdotal, generalized, and often second-hand assertions of harm.”

If the rulings were allowed to stand, they argued, it would cause particular harm in rural, low-income areas, where women die more often in childbirth and where there often aren’t any clinics that offer surgical abortion procedures, the brief said.

For people in these areas, abortion medication is their only viable method.

“The continued availability of mifepristone, in accordance with sound medical guidelines, is therefore critical to safeguarding amici States’ important interest in protecting the health, safety, and rights of their residents to access essential reproductive health care.”

Tangled rulings

The court process so far has caused some whiplash, and the Supreme Court is expected to be the final word.

The first judge to rule on the case, Judge Matthew J. Kacsmaryk, is a vocal critic of abortion overall. He issued a sweeping ruling that invalidated the FDA’s approval of the drug.

A few days later, the 5th US Circuit Court of Appeals in New Orleans threw out that ruling, but restored the restrictions on mail and telehealth the FDA had said were no longer necessary. The Biden administration immediately appealed those decisions and asked the Supreme Court to fast-track the case.

The Supreme Court froze all rulings until they decided what to do, so access to both drugs remains unchanged. The court agreed in December to hear the case, and is expected to issue a final ruling before its term ends in June.

In a news release on Wednesday, Stein said that he would “continue to do everything in my power to stand up for women’s reproductive freedoms.”

He added: “No woman should ever have to worry about whether she can get the medication she needs.”


  • Michael McElroy

    Michael McElroy is Cardinal & Pine's political correspondent. He is an adjunct instructor at UNC-Chapel Hill's Hussman School of Journalism and Media, and a former editor at The New York Times.


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