ANALYSIS: The Abortion Pill Before the Supreme Court — The Battle No One Wants to Call by Its Real Name

When Selling a Drug Becomes a Political Statement

Danco Laboratories is a privately held company based in New York. It has been selling the abortion pill since 2000. It spent twenty-three years trying to remain invisible. No advertising. No press releases. No public face. GenBioPro, its generic competitor, operates the same way. Neither company wanted to fight. They just wanted to sell an approved drug.

On November 14, 2025, they jointly filed a writ of certiorari with the Supreme Court. Twenty-three years of silence were broken. They are asking nine justices to restore what the FDA had validated for a quarter of a century. It is an admission of an era: science alone is no longer enough to protect a woman in Tennessee.

The legal argument: Does the FDA still have a right to exist?

At the heart of the case lies a staggering question: if a federal judge can overturn twenty-five years of FDA approval, then any drug can be challenged—insulin, vaccines, chemotherapy. The precedent would open a can of worms that no one would be able to close.

And yet, in June 2024, the Supreme Court already had the opportunity to rule in FDA v. Alliance for Hippocratic Medicine. It sidestepped the issue. It dismissed the case on the grounds that the plaintiffs lacked standing. It never addressed the merits of the case. It kicked the can down the road for sixteen months. Today, the case is back on the docket—with new plaintiffs. Three conservative states—Missouri, Idaho, and Kansas—which do have standing to sue.

I find something obscene about this procedural farce. For sixteen months, women have had abortions under harsher conditions because nine justices didn’t feel like ruling. Sixteen months. How many Sarahs are in this black hole? No one is counting. No one wants to count.

The “harm to the state” argument

The attorneys general of the three states argue that the abortion pill “causes fiscal and health-related harm” to their state governments. Andrew Bailey, Missouri’s attorney general, argues that post-pill complications cost Medicaid money. Raul Labrador, Idaho’s attorney general, speaks of “protecting the integrity of the healthcare system.” Kris Kobach, Kansas’s attorney general, adds that mailing the pill violates the Comstock Act of 1873.

The Comstock Act. A law from 1873. Enacted to ban the mailing of “obscene” material. Revived in 2024 to block a drug approved in 2000. This is where we stand: a Victorian-era law pitted against a 21st-century drug.

The numbers that debunk the argument

Serious complications from mifepristone: 0.3%. Hospitalizations: 0.03%. Deaths: 5 out of 5.9 million patients. By comparison, full-term childbirth in the United States kills 32.9 women per 100,000. The “health risk” cited by Bailey, Labrador, and Kobach does not exist in the data. It exists only in their electoral imagination.

I reread Andrew Bailey’s brief three times, looking for a properly cited clinical study. I didn’t find one. He cites blogs. He cites “crisis pregnancy centers” that are not clinics. And that’s what’s going to determine the fate of a woman in Tennessee. Blogs.

The Six Judges Who Hold the Balance

The Court currently has six conservative justices: John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. There are three liberal justices: Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. It was this same Court that overturned Roe v. Wade in June 2022. It was this same Court that dismissed FDA v. Alliance in June 2024 on procedural grounds—not out of conviction.

The math is harsh. Roberts wants to preserve the institution. Barrett showed signs of restraint in Alliance. Kavanaugh is unpredictable. Three potential conservative votes plus the three progressives. Six against three to restore access. Possible. Not guaranteed.

The clock is ticking—and every month counts

The hearing is expected in the spring of 2026. The decision will be handed down in June 2026. Between now and June 2026: seven months. Seven months during which Sarah, in Tennessee, will have to drive. Seven months during which women will make decisions they didn’t want to make. Seven months of lives upended by legal proceedings.

Seven months. I say seven months, and it sounds like a short time. But ask a 31-year-old woman with two children what seven months mean when every week brings one more cell. The judges’ time and women’s time are not the same. That’s the divide.

The Silent Revolution of 2021

In December 2021, the FDA authorized telemedicine consultations for mifepristone. During the pandemic. As an emergency measure. This decision transformed access. Aid Access, a platform founded by Dutch physician Rebecca Gomperts, shipped more than 110,000 doses in 2023. Hey Jane, another platform, served more than 50,000 patients in 21 states. No clinic. No travel. No judgment.

For women in medical deserts—Mississippi, Alabama, South Dakota—teleconsultation wasn’t a luxury. It was the only option. The 5th Circuit Court of Appeals cut off that option. With the stroke of a pen. Three judges against 50,000 patients.

Doctors Who Take the Risk

Dr. Linda Prine, a family physician in New York, is one of the practitioners who continues to prescribe remotely despite the “shield laws” adopted by 14 Democratic states. She prescribes to patients in Texas, Florida, and Tennessee. She risks being struck off the medical roll. She risks prosecution. She continues. She is 67 years old. She says: “I won’t leave these women on their own.”

Linda Prine. Sixty-seven years old. She could be retired. She could be gardening. Instead, she prescribes. She takes legal risks that her colleagues do not. When the history of this era is written, she is the one who will be cited. Not Andrew Bailey.

Amber Thurman, Georgia, age 28

Amber Nicole Thurman, a single mother and medical assistant, died on August 19, 2022, at the age of 28, at Piedmont Henry Hospital in Georgia. She had obtained mifepristone out of state. She had developed sepsis. Doctors in Georgia waited twenty hours before performing the dilation and curettage that could have saved her. Why? Because Georgia’s abortion law terrified them. They feared criminal prosecution.

Amber leaves behind a six-year-old son. ProPublica published her story in September 2024. Governor Brian Kemp made no comment. Attorney General Chris Carr made no comment. No one resigned. No one cried publicly. Amber died because judges and elected officials made doctors too afraid to treat her.

Candi Miller, Georgia, 41, three children

Candi Miller, 41, a mother of three who suffered from lupus, ordered the pill by mail in November 2022. She was afraid to go to the hospital. She died at home. Her family found her in her bed, with her 3-year-old child beside her. The cause: an untreated complication. She didn’t call for help. She was afraid of being arrested.

I type these names—Amber, Candi—and I pause. Because in the legal briefs I’ve just read, these names don’t appear. Not once. Twenty-three pages of arguments from the Missouri prosecutor, and not a single mention of Amber Thurman. As if she had never existed. As if her six-year-old son weren’t waiting for his mother, who will never come home. That’s what it means to crush someone with legal procedure: you erase them from the record.

PhRMA Takes a Stand — an Extremely Rare Occurrence

Pharmaceutical Research and Manufacturers of America—the lobby group representing Pfizer, Merck, Eli Lilly, and Johnson & Johnson—has filed an amicus brief in support of Danco and GenBioPro. This is extremely rare. PhRMA typically avoids political issues. Except that this time, the stakes go beyond abortion. If a Texas judge can overturn the FDA, the entire U.S. pharmaceutical pipeline becomes unstable.

The industry is worth $635 billion. It employs 4.8 million people. It doesn’t mobilize for the sake of principles. It mobilizes when its business model is threatened. This mobilization is proof: the attack on the birth control pill is an attack on the regulatory state itself.

Former FDA Commissioners Unite

Four former FDA commissioners—Margaret Hamburg, Robert Califf, David Kessler, and Jane Henney—spanning both Democrats and Republicans—have signed a joint brief. They write: “If the 5th Circuit’s decision stands, the agency can no longer function.” Four of the last six living commissioners. An unprecedented institutional alarm.

When four former heads of the FDA—including two appointed by Republican presidents—mobilize to defend an abortion pill, this is no longer a debate about abortion. It is a debate about the very existence of a regulatory state. And yet, the media keep talking about “abortion.” Always “abortion.” As if the word alone were enough to freeze thought.

A 152-year-old law, suddenly revived

The Comstock Act was passed on March 3, 1873, and signed by Ulysses S. Grant. It prohibits the mailing of any “obscene, lewd, or indecent” material, including “any substance used to induce an abortion.” The law was never repealed. It remained dormant for fifty years—until 2023, when Judge Kacsmaryk revived it.

Attorney Jennifer Mascott of Project 2025 has publicly stated that the Comstock Act could be used to “ban the mailing of any abortion-related materials, including surgical instruments.” If the Supreme Court upholds this interpretation, surgical abortion itself would become impossible to perform in all 50 states. Not just the pill. Everything.

The trap no one sees coming

The Heritage Foundation’s Project 2025, a policy document for the Trump administration, mentions the Comstock Act 14 times. Pages 562, 583, 612. The plan is explicit: use a law from 1873 to circumvent the lack of a federal ban on abortion. It’s legally audacious. It’s politically explosive. And it’s before the Supreme Court right now.

1873. The telephone didn’t exist. Women didn’t have the right to vote. And that’s the basis for legislating over the body of Sarah, an accountant in Memphis, in 2026. Look up the word “anachronism” in the dictionary. You’ll find this case.

Fourteen States Against the Tsunami

Fourteen Democratic states have enacted shield laws: New York, California, Massachusetts, Washington, Illinois, Colorado, Connecticut, Vermont, Maine, New Jersey, Maryland, Minnesota, Hawaii, and Oregon. These laws protect doctors who prescribe the pill to out-of-state patients. They refuse extradition. They refuse judicial cooperation.

This is the first time since the Civil War that U.S. states have enacted laws explicitly intended to counter the laws of other states. Kathy Hochul, governor of New York, stated in September 2024: “No doctor in this state will be extradited to Texas for helping a woman.” This marks the legal fragmentation of the country.

Illinois on the Front Lines

Since 2022, Illinois has become the epicenter of abortion in the Midwest. In 2024, 40,000 out-of-state patients had abortions there. Clinics in Chicago, Granite City, and Carbondale are receiving women from Tennessee, Kentucky, Missouri, and Indiana. Appointments must be made six weeks in advance. Sarah, from Tennessee, will have to wait until January 2026. By then, she will be 16 weeks pregnant—beyond Illinois’s legal limit for abortion without additional procedures.

A six-week waiting list. For a medication that takes just a few hours to administer. This is what the 5th Circuit Court’s “victory” has produced: human traffic jams. Women standing in line. Weeks passing by. Options closing off. This is the mechanics of procedural cruelty.

January 2025 — The Turning Point

On January 20, 2025, Donald Trump was sworn in for a second term. Attorney General Pam Bondi was confirmed on February 4, 2025. On March 17, 2025, the Department of Justice withdrew the federal government’s opposition to the ongoing case. The Biden administration had been defending the FDA. The Trump administration abandoned it—without a press release, without a public hearing, in a three-page letter.

This move changes everything. The manufacturers—Danco, GenBioPro—find themselves alone against the three conservative states. The U.S. Department of Justice, which should have defended its own health agency, chose not to appear. This is unprecedented in recent history.

The Hidden Weapon—Robert Kennedy Jr. at the Department of Health

Robert F. Kennedy Jr., Secretary of Health since February 13, 2025, has the administrative authority to ask the FDA to reevaluate mifepristone. He did so. On May 22, 2025, he ordered a “safety review.” This review is being led by Marty Makary, the Trump-appointed FDA commissioner, who is personally opposed to the pill. The outcome is a foregone conclusion.

When an FDA commissioner is appointed to dismantle the FDA from within, there’s a name for that. It’s called regulatory capture. And it’s happening right now, right before our eyes, while the news channels are talking about the president’s latest tweet. The real story is administrative. It’s silent. And it’s crushing Sarah.

The Harsh Reality of Travel

A woman in Mississippi who wants an abortion must travel an average of 583 kilometers. A woman in Texas: 772 kilometers. A woman in South Dakota: 515 kilometers. Average cost: $1,200 to $1,800, including transportation, lodging, childcare, lost wages, and the procedure itself. For 49% of American women, this amount is unaffordable.

The Turnaway Study, conducted by Diana Greene Foster at UCSF, has been tracking women who were denied abortions since 2008. Five-year results: four times more likely to live below the poverty line, three times more likely to be a single mother, and twice as likely to experience domestic violence. These figures are not opinions. They are lives shattered by judges who have never read the study.

Children Already Born—The Invisible Ones in the Debate

61% of women who have abortions in the United States are already mothers. They already have children. They know the financial burden of raising a child. Sarah, from Tennessee, isn’t having an abortion to escape motherhood. She’s having an abortion to protect the children she already has. This fact never appears in the statements from Bailey, Labrador, or Kobach. It disrupts their narrative. So it disappears.

When people say a woman “rejects motherhood,” they’re lying. Most of them have already accepted it, lived through it, and weathered it. They know what it’s like. They know how many diapers, how many sleepless nights, how many trips to the emergency room for a fever. And it’s precisely because they know this that they say: not a third time. Not now. Not under these circumstances. And in return, they’re called “selfish.”

France, the United Kingdom, Germany — a lack of understanding

In France, abortion has been a constitutional right since March 4, 2024. The abortion pill is available in pharmacies there, without the need for a telemedicine consultation, up to 9 weeks. In the United Kingdom, telemedicine consultations are legal and well-established. In Germany, following the Kristina Hänel scandal, the law was liberalized in 2022.

European diplomats based in Washington report off the record that U.S. officials traveling to Europe are facing increasingly direct questions: “How can you let this happen?” The image of the United States—a beacon of individual freedoms—is crumbling issue by issue. The abortion pill has become a marker of civilization.

Canada—the discreet neighbor that welcomes

In Canada, mifepristone (sold under the brand name Mifegymiso) has been available free of charge in all 10 provinces since 2017. No specialized medical prescription is required. Telemedicine consultations are permitted. Mark Carney, prime minister since March 2025, reaffirmed in September 2025 that American women crossing the border “will be welcomed without question.” Clinics in Windsor, Niagara, and Vancouver saw their cross-border patient numbers skyrocket by 340% between 2022 and 2025.

An American woman from Michigan crossing the Ambassador Bridge to have an abortion in Windsor. That’s the picture of 2026. What the United States can no longer offer its female citizens, Canada provides by default—free of charge and without drama. It is the silent humiliation of a superpower that no longer knows how to protect its women.

The 2024 Cochrane Review—The Definitive Synthesis

The Cochrane Library, the global authority on evidence-based medicine, published a meta-analysis in July 2024 of 87 studies covering 1.2 million uses of mifepristone. Conclusion: “Efficacy exceeds 97%, serious complications are less than 0.4%, and access via teleconsultation does not significantly alter the safety profile.” In medical science, this is what is known as an overwhelming consensus.

And yet, before the U.S. Supreme Court, the debate will proceed as if the science were still up for debate. As if Cochrane did not exist. As if twenty-five years of FDA guidance carried the same weight as a blog cited by a Missouri prosecutor.

The WHO Takes a Stand

The World Health Organization added mifepristone to its List of Essential Medicines in 2019. Alongside penicillin. Alongside insulin. Alongside morphine. Tedros Adhanom Ghebreyesus, Director-General, stated in October 2025: “Restrictions on mifepristone are a matter of human rights, not science. ” The WHO never makes this kind of political statement. Except this time.

When the WHO, normally diplomatic to the core, declares that the United States is violating human rights, it’s no small matter. It’s an institutional earthquake. And here, it gets two paragraphs on page 14. That’s how a democracy goes downhill: by no longer reading page 14.

The Impossible Scenario

Let’s imagine that the Supreme Court rules in June 2026 in favor of Danco and GenBioPro. The pill becomes available again via telemedicine and mail order. Sarah, who will have already given birth in July 2026 to a child she didn’t want, won’t benefit from this at all. For her, the decision comes too late. She is now raising three children. She quits her job. Her marriage is falling apart. She joins the Turnaway Study cohort.

Let’s imagine the opposite scenario. The Supreme Court upholds the restrictions. The pill remains unavailable in 21 states. The Comstock Act is upheld. Surgical abortion also becomes vulnerable to legal challenges. The U.S. pharmaceutical pipeline enters a regulatory crisis. Tens of thousands of women take to the road—or don’t. Some die, like Amber. Some survive in poverty, as in the Turnaway Study. None of them forget.

What remains, in any case

Whatever the verdict, one thing is now clear: American women’s bodies are a legal patchwork. At 2 a.m., in a kitchen in Tennessee, a woman calculates how much gas she’ll need to drive to Illinois. At 2 a.m., in a Manhattan apartment, another orders her birth control pill as easily as she would a book. Same country. Same currency. Same flag. Not the same rights.

And in the midst of it all, nine people in robes, in a marble building in Washington, will decide which of the two has the right mailing address.

I wrote this article thinking of Sarah, who doesn’t exist and yet exists everywhere. I don’t know her real name. I know she’s there tonight, in a kitchen in Tennessee, trying to figure out how her life got to this point. I’d like to tell her that justice will come. But I’m not so sure anymore. What I do know is that she doesn’t deserve what’s being done to her. And that whoever wrote the latest procedural brief against her—in Jefferson City or Boise—forgot there was a human being at the end of their sentence. That’s the real disease of our time: we’ve forgotten the human beings at the end of our sentences.

Signed, Maxime Marquette, columnist