The abortion method that is most widely used and is the simplest – taking pills at home – survived a legal challenge in the Supreme Court Thursday.  The unanimous decision, however, did not settle the legality of that method, so other challenges could arise.

This was the Court’s first ruling on abortion since its decision two years ago ending a woman’s constitutional right to end a pregnancy, thus shifting the nationwide controversy to the state government level.

The immediate effect of the new ruling is that women seeking abortions will continue to have some access to the government-approved two-pill protocol in 36 states and Washington, D.C., with some restrictions remaining in 15 of those states on who other than doctors can prescribe the medications.  Two major drug chains, CVS and Walgreens, now sell the two drugs by prescription through their pharmacies.

In 14 states, state laws that totally ban or significantly restrict abortions by all methods do not allow abortion either by medication or by surgery, with few if any exceptions.   Abortion rights activists continue to challenge in court some of the remaining restrictions, and continue to lobby for new protection for abortion through state constitutional amendments that have been successful in a lengthening list of states.

The two-pill protocol has been used by nearly six million women in America, with that method occurring in 63 percent of all abortions – a percentage that has been rising steadily.  The protocol allows the ending of a pregnancy up through 70 days, the tenth week of pregnancy.  First, the patient takes mifepristone (now available in both brand-name and generic versions), which blocks a natural hormone that is needed to sustain a pregnancy.  Second, the patient takes misoprostol.  The two-pill sequence results in contractions that empty the uterus, completing the process.

The U.S. Food and Drug Administration first approved mifepristone 24 years ago and, since then, has steadily reduced the restrictions on how the drug and the protocol are permitted.  The case decided by the Court on Tuesday was not a test of the original FDA approval, but rather of the more-recent relaxation of restrictions.

The decision came in two combined cases that will be known by the title Food and Drug Administration v. Alliance for Hippocratic Medicine.  The decision was written by Justice Brett M. Kavanaugh, and was supported in full by the other eight Justices.  Justice Clarence Thomas joined the ruling, but also filed a separate opinion arguing that the Court should have gone further to limit access to federal courts in general.

The challengers were doctors who are opposed to abortion, by organizations of such doctors, and by citizen opponents of abortion, seeking a nationwide court order to totally ban the use of medication abortions.  Their most sweeping demands were supported by a federal trial judge in Texas, but only in part by a federal appeals court.

Both the trial judge and the appeals court agreed, however, that the challengers had a legal right to sue to challenge the FDA actions wholly or partly.  The Supreme Court on Thursday overturned those results, declaring that none of the doctors, individuals or organizations had any legal right to sue in the first place, because they could not show that they had suffered any legal harm from the FDA’s actions and could not link to the FDA’s actions their own fears that the two-drug protocol would require them to treat patients who followed the protocol and then had complications requiring hospital treatment.

No part of Kavanaugh’s 25-page opinion for the Court commented on the legality of what the FDA had done, but it did reject the challengers’ sweeping argument that the Court had a duty to allow some one to bring a challenge.  The opinion suggested that those opposed to the FDA action take their claims to the political branches of government, the President and Congress.

Kavanaugh’s opinion, however, did seek to assure doctors who are personally opposed to abortion that federal law that protects conscience objections to abortion would shield them from reprisals if they refused to aid abortion in any way in their medical practice.

It is difficult to anticipate who among individuals, groups or government officials who oppose abortion or the medication abortion procedure would be able to satisfy the right-to-sue standards the Court recited Thursday in rejecting these challengers.  The Kavanaugh opinion indicated that those standards had existed for some time in the Court’s precedents.