The war over abortion access in the United States is entering a new chapter. Nearly two years after overturning the federal constitutional right to abortion, the Supreme Court is set to consider the use of the abortion pill on Tuesday, March 26.

Following an appeal by the Biden administration, the high court is due to hear oral arguments on the complaint filed in 2022 by the conservative coalition Alliance Defending Freedom. While there is no question of banning mifepristone, one of the two substances used for chemical abortion, the dispute concerns its marketing via telemedicine, the system that enables women to bypass the abortion restrictions put in place in some 20 conservative states.

Since the pandemic, medical abortion, based on two drugs – mifepristone and misoprostol – has become the most common pregnancy termination procedure in the US (63% of procedures in 2023 versus 53% in 2020). In 2000, the US Food and Drug Administration (FDA) approved the marketing of mifepristone (also known as RU-486) for pregnancies of less than seven weeks. In 2016, it extended the approval to 10 weeks.

Five years later, in December 2021, it removed the requirement that the drug be dispensed during an in-person medical visit. This decision facilitated the marketing of the drug via telemedicine with shipment by mail. This outraged the conservative movement, which believed it had struck a decisive blow against abortion thanks to the Supreme Court's June 24, 2022, decision returning the legalization of abortion to the states.

Since the summer of 2023, pro-choice advocacy groups have noted a marked increase in abortions using telemedicine and mail delivery, particularly in Texas and Idaho, two states where abortion is banned except when the mother's life is in danger. The cost is much lower than traveling to a state that still allows abortion: around $150 (less than €140) per treatment.

This use of the abortion pill has been made possible by the fact that six Democratic states (Massachusetts, New York, California, Vermont, Colorado and Washington), determined to defend abortion even beyond their borders, have passed "shield laws" protecting doctors who prescribe abortions online, as well as clinics that ship the medication by mail. These laws block lawsuits that could be brought against them by states where abortion is banned or restricted. Doctors cannot be extradited, in contradiction with the principle of interstate judicial cooperation inherent in American federalism.

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