Science
Opinion: The mifepristone case should be an easy one for the Supreme Court. But will it be?
As a matter of law, the case argued Tuesday at the Supreme Court concerning the availability of medicine to induce abortions is easy: The Food and Drug Administration has the authority to make mifepristone available and to later increase its availability. But as the oral arguments in Food and Drug Administration vs. Alliance for Hippocratic Medicine indicated, the outcome is anything but clear.
In 2000, the FDA approved mifepristone as part of a two-drug protocol to induce abortions. Last year, about 63% of all U.S. abortions were medically induced using these drugs rather than being surgically performed.
Medically induced abortions have increased since Roe vs. Wade was overruled in 2022. Especially in states that have prohibited virtually all abortions, the ability of a woman to have an abortion by taking pills, which can be obtained in a number of ways, has taken on enormous importance. Even in states such as California where abortion is legal, “medication abortions” provide a preferable, safe alternative to surgical procedures for many seeking abortions.
A conservative antiabortion group brought a challenge to the FDA’s approval of mifepristone. An openly antiabortion federal judge in Texas issued an order stopping the distribution of mifepristone everywhere in the country. As U.S. Solicitor Gen. Elizabeth B. Prelogar pointed out during oral arguments on Tuesday, this was the first time in history that a judge had overturned the FDA’s approval of a drug.
A conservative panel of the U.S. 5th Circuit Court of Appeals said that the judge was wrong in stopping all use of mifepristone after it had been on the market for 23 years, but the appellate court overturned FDA actions that over the years had made the drug more easily available. In 2016, the FDA said that the drug could be used until the 10th week of pregnancy rather than just to the seventh week as initially permitted, reduced the number of required in-person clinical visits from three to one and allowed nonphysician healthcare providers, such as nurse practitioners, to prescribe and dispense mifepristone. It also reduced the dosage from 600 milligrams to 200 milligrams. In 2021, the FDA eliminated the requirement that mifepristone be administered in person; it was the only drug for which there was such a requirement.
The 5th Circuit overturned these 2016 and 2021 changes, concluding that they were “arbitrary, capricious, and an abuse of discretion” on the part of the FDA. That decision, if upheld, would make it much harder for those seeking abortions to have access to mifepristone, and it is that ruling that is being reviewed by the Supreme Court.
There are multiple reasons the Supreme Court should find in favor of the FDA and mifepristone. To begin with, no one has standing to bring this lawsuit. In order to sue in federal court, a plaintiff must have personally suffered an injury. But no one is hurt by the FDA’s making mifepristone more easily available.
The primary argument made by Erin M. Hawley, who was representing the plaintiffs, was that doctors who don’t want to perform abortions will be required to do so in an emergency when there are complications from the use of mifepristone. But as the solicitor general repeatedly pointed out, under federal law, no doctor is required to perform abortions or prescribe medication that offends their beliefs. Justice Elena Kagan stressed that there was no indication of any doctor with a conscience objection to abortions ever having been forced to perform one because of the FDA rules regarding mifepristone.
Even if the court stretches the law and finds that the plaintiffs have standing, the case still should be easy to decide in the FDA’s favor on its merits. Under the federal Administrative Procedures Act, an agency action should be overturned only if it is “arbitrary, capricious, or an abuse of discretion.” This is a legal standard that is very deferential to the agency. In fact, in 2021, Chief Justice John G. Roberts Jr. said, “Courts owe significant deference to the politically accountable entities with the ‘background, competence, and expertise to assess public health.’ ” In light of overwhelming evidence as to the safety of mifepristone, it is impossible to say that the FDA’s actions were arbitrary and capricious, no matter the opinion of the 5th Circuit.
One of the most frightening aspects of Tuesday’s oral arguments was that both Justices Clarence Thomas and Samuel A. Alito Jr. invoked a statute adopted in 1873, the Comstock Act, which prohibits shipment of obscene materials and contraceptives through the mails or by common carriers. It also forbids shipment of “every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion.” The Comstock Act has not been used for over a century, but if the court is willing to apply it now, it is a huge threat to abortions, even in states where it is legal.
With six justices on the court who both oppose abortion and want to limit the power of federal agencies, it is hard to predict the outcome of the mifepristone case, despite the clarity of the issues. If the court overturns the FDA here, it will open the door to challenges against countless other drugs.
Ultimately, as Justice Ketanji Brown Jackson indicated near the end of the oral arguments, the question is who should decide if a drug is safe and effective, the FDA or the federal courts? Since 1906, the answer, without exception, has been the FDA and that should remain the law.
Erwin Chemerinsky is a contributing writer to Opinion and the dean of the UC Berkeley School of Law. His latest book is “Worse Than Nothing : The Dangerous Fallacy of Originalism.”
Science
What’s in a Name? For These Snails, Legal Protection
The sun had barely risen over the Pacific Ocean when a small motorboat carrying a team of Indigenous artisans and Mexican biologists dropped anchor in a rocky cove near Bahías de Huatulco.
Mauro Habacuc Avendaño Luis, one of the craftsmen, was the first to wade to shore. With an agility belying his age, he struck out over the boulders exposed by low tide. Crouching on a slippery ledge pounded by surf, he reached inside a crevice between two rocks. There, lodged among the urchins, was a snail with a knobby gray shell the size of a walnut. The sight might not dazzle tourists who travel here to see humpback whales, but for Mr. Avendaño, 85, these drab little mollusks represent a way of life.
Marine snails in the genus Plicopurpura are sacred to the Mixtec people of Pinotepa de Don Luis, a small town in southwestern Oaxaca. Men like Mr. Avendaño have been sustainably “milking” them for radiant purple dye for at least 1,500 years. The color suffuses Mixtec textiles and spiritual beliefs. Called tixinda, it symbolizes fertility and death, as well as mythic ties between lunar cycles, women and the sea.
The future of these traditions — and the fate of the snails — are uncertain. The mollusks are subject to intense poaching pressure despite federal protections intended to protect them. Fishermen break them (and the other mollusks they eat) open and sell the meat to local restaurants. Tourists who comb the beaches pluck snails off the rocks and toss them aside.
A severe earthquake in 2020 thrust formerly submerged parts of their habitat above sea level, fatally tossing other mollusks in the snail’s food web to the air, and making once inaccessible places more available to poachers.
Decades ago, dense clusters of snails the size of doorknobs were easy to find, according to Mr. Avendaño. “Full of snails,” he said, sweeping a calloused, violet-stained hand across the coves. Now, most of the snails he finds are small, just over an inch, and yield only a few milliliters of dye.
Science
Video: This Parrot Has No Beak, But Is at the Top of the Pecking Order
new video loaded: This Parrot Has No Beak, But Is at the Top of the Pecking Order
By Meg Felling and Carl Zimmer
April 20, 2026
Science
Contributor: Focus on the real causes of the shortage in hormone treatments
For months now, menopausal women across the U.S. have been unable to fill prescriptions for the estradiol patch, a long-established and safe hormone treatment. The news media has whipped up a frenzy over this scarcity, warning of a long-lasting nationwide shortage. The problem is real — but the explanations in the media coverage miss the mark. Real solutions depend on an accurate understanding of the causes.
Reporters, pharmaceutical companies and even some doctors have blamed women for causing the shortage, saying they were inspired by a “menopause moment” that has driven unprecedented demand. Such framing does a dangerous disservice to essential health advocacy.
In this narrative, there has been unprecedented demand, and it is explained in part by the Food and Drug Administration’s recent removal of the “black-box warning” from estradiol patches’ packaging. That inaccurate (and, quite frankly, terrifying) label had been required since a 2002 announcement overstated the link between certain menopause hormone treatments and breast cancer. Right-sizing and rewording the warning was long overdue. But the trouble with this narrative is that even after the black-box warning was removed, there has not been unprecedented demand.
Around 40% of menopausal women were prescribed hormone treatments in some form before the 2002 announcement. Use plummeted in its aftermath, dipping to less than 5% in 2020 and just 1.8% in 2024. According to the most recent data, the number has now settled back at the 5% mark. Unprecedented? Hardly. Modest at best.
Nor is estradiol a new or complex drug; the patch formulation has existed for decades, and generic versions are widely manufactured. There is no exotic ingredient, no rare supply chain dependency, no fluke that explains why women are suddenly being told their pharmacy is out of stock month after month.
The story is far more an indictment of the broken insurance industry: market concentration, perverse incentives and the consequences of allowing insurance companies to own the pharmacy benefit managers that effectively control drug access for the majority of users. Three companies — CVS Caremark, Express Scripts and OptumRx — manage 79% of all prescription drug claims in the United States. Those companies are wholly owned subsidiaries of three insurance behemoths: CVS Health, Cigna and UnitedHealth Group, respectively. This means that the same corporation that sells you your insurance plan also decides which drugs get covered, at what price, and whether your pharmacy can stock them. This is called vertical integration. In another era, we might have called it a cartel. The resulting problems are not unique to hormone treatments; they have affected widely used medications including blood thinners, inhalers and antibiotics. When a low-cost generic such as estradiol — a medication with no blockbuster profit margins and no patent protection — runs into friction in this system, the friction is not random. It is structural. Every decision in that chain is filtered through the same corporate profit motive. And when the drug in question is an off-patent estradiol patch that has negligible profit margins because of generic competition but requires logistical investment to keep consistently in stock? The math on “how much does this company care about ensuring access” is not complicated.
Unfortunately, there is little financial incentive to ensure smooth, consistent access. There is, however, significant financial incentive to steer patients toward branded alternatives, or simply to let supply tighten — because the companies aren’t losing much profit if sales of that product dwindle. This is not a conspiracy theory: The Federal Trade Commission noted this dynamic in a report that documented how pharmacy benefit managers’ practices inflate costs, reduce competition and harm patient access, particularly for independent pharmacies and for generic drugs.
Any claim that the estradiol patch shortage is meaningfully caused by more women now demanding hormone treatments is a distraction. It is also misogyny, pure and simple, to imply that the solution to the shortage is for women’s health advocates to dial it down and for women to temper their expectations. The scarcity of estradiol patches is the outcome of a broken system refusing to provide adequate supply.
Meanwhile, there are a few strategies to cope.
- Ask your prescriber about alternatives. Estradiol is available in multiple formulations, including gel, spray, cream, oral tablet, vaginal ring and weekly transdermal patch, which is a different product from the twice-weekly patch and may be more consistently available depending on manufacturer and region.
- Consider an online pharmacy. Many are doing a good job locating and filling these prescriptions from outside the pharmacy benefit manager system.
- Call ahead. Patch shortages are inconsistent across regions and distributors. A call to pharmacies in your area, or a broader geographic radius if you’re able, can locate stock that your regular pharmacy doesn’t have.
- Consider a compounding pharmacy. These sources can sometimes meet needs when commercially manufactured products are inaccessible. The hormones used are the same FDA-regulated bulk ingredients.
Beyond those Band-Aid solutions, more Americans need to fight for systemic change. The FTC report exists because Congress asked for it and committed to legislation that will address at least some of the problems. The FDA took action to change the labeling on estrogen in the face of citizen and medical experts’ pressure; it should do more now to demand transparency from patch manufacturers.
Most importantly, it is on all of us to call out the cracks in the current system. Instead of repeating “there’s a patch shortage” or a “surge in demand,” say that a shockingly small minority of menopausal women still even get hormonal treatments prescribed at all, and three drug companies control the vast majority of claims in this country. Those are the real problems that need real solutions.
Jennifer Weiss-Wolf, the executive director of the Birnbaum Women’s Leadership Center at New York University School of Law, is the author of the forthcoming book “When in Menopause: A User’s Manual & Citizen’s Guide.” Suzanne Gilberg, an obstetrician and gynecologist in Los Angeles, is the author of “Menopause Bootcamp.”
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