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A pill that Hawaii women rely on for more than half of the islands’ abortions may be restricted by an upcoming decision from the U.S. Supreme Court. 

Justices are set to hear a case challenging the FDA’s regulation of mifepristone, the first in a two-pill regimen commonly used to terminate pregnancy in the first 10 weeks.

The court will decide whether to reverse measures that expanded access to the medication in recent years, including allowing the pill to be delivered by mail and giving practitioners other than physicians the authority to prescribe it. 

The case has not yet been heard by the high court, but abortion proponents are already getting nervous about what the court’s conservative supermajority will do. 

“It would be devastating,” said Dr. Reni Soon, an ob-gyn who provides abortion services on Oahu and Maui. 

In the last three years alone, more than 3,100 patients used mifepristone, according to Hawaii Department of Health data. If the Supreme Court rules patients must see a medical doctor in person to get the pill, many Hawaii residents would face challenges, and in some cases, may be forced to carry pregnancies to term against their will.

The Supreme Court’s decision could wipe out local abortion access for patients on islands like Kauai, according to Dr. Graham Chelius, a family physician on that island.

On Kauai, there are no facilities offering surgical abortions and only four prescribers of the abortion pill, Chelius said. All of them rely on the current regulations to administer the medication.

“At least on this island, for Kauai, you could not get an abortion on this island anymore,” Chelius said.

Years ago, before mifepristone was prescribed and administered via telemedicine, many neighbor island patients had to get on a plane to end their pregnancy. Even if insurance covered the airfare, the patient had to pay for their own accommodations and transportation and possibly arrange for child care back home. 

“We’re talking about getting time off work, leaving your family, leaving your community,” Soon said. “It’s difficult to do that, and for some people, it’s not possible.” 

Patients facing the biggest hurdles include those who are poor or homeless, those in abusive relationships and those with mental illness or addiction issues, Chelius said. Patients in their teens, those who don’t speak English and members of religiously conservative families may also struggle to leave home to receive services on another island.

The result, Soon said, is more instances of “forced birth, forcing someone to be pregnant and to remain pregnant.”

“A lot of times that can have horrendous consequences on that person, on their family,” she said.

In a statement, Gov. Josh Green said the state will do what it can to protect abortion rights against “ideological challenges that come before the courts.”

Earlier this year, the Hawaii Department of Health struck an agreement with Kapiolani Medical Center to stock up on 1,000 doses of the drug. The state will reimburse the hospital for any unused doses. 

“Hawaii was one of the first states to stand up for equality for women across all aspects of life, including access to reproductive health care and women’s rights to make choices,” he said.

“We will continue to work with our state Attorney General to defend women’s access to all forms of safe, legal health care that they are entitled to receive.”

The Anti-Abortion Legal Strategy

When the Supreme Court struck down the decades-long federal right to abortion last year, the justices stated the matter was better left to the states. Justice Samuel Alito wrote, “the authority to regulate abortion must be returned to the people and their elected representatives.”

But now, the court will consider restrictions to the pill that could threaten access in all 50 states – including Hawaii, the first state to legalize abortion. 

The case centers on mifepristone’s approval by the U.S. Food and Drug Administration, which originally approved the medication’s use in 2000.

At first, patients were required to see a doctor in person three separate times – one visit to receive the mifepristone; another visit to receive the second pill in the course, called misoprostol; and a final check-in for the doctor to confirm the abortion was successful.

In the years since, research has shown mifepristone is safe enough for patients to administer it to themselves. Serious complications are rare, and proponents of the drug have noted it has Nevertheless, abortion opponents have questioned the medication’s safety and have argued the FDA’s approval process was flawed.

On those grounds, the Alliance for Hippocratic Medicine, a group of anti-abortion doctors and medical organizations, sued the FDA, challenging its approval of mifepristone two decades prior. The group believes life begins at conception and that abortion is murder, according to a statement .

“Abortion, which is an action whose sole intent is to end this life, clearly violates the basic tenets of medical ethics,” the group says.

The group is represented by , an influential Christian law firm that has fought against abortion for years, including litigation against Planned Parenthood, cases that defend health care providers who oppose abortion and laying the groundwork for the demise of Roe v. Wade.

The plaintiffs filed the case in a Texas federal court that has , sparking accusations of “judge shopping.” The judge, Matthew Kacsmaryk, is a Trump appointee who previously worked for a conservative Christian law group that opposed abortion.

In April, Kacsmaryk ruled the FDA’s approval should be suspended and mifepristone removed from the market. President Joe Biden’s administration appealed that ruling, and a higher court walked back Kacsmaryk’s sweeping decision.

However, the appeals court struck down the FDA’s efforts in recent years to expand access – namely allowing for pills by mail and approving prescriptions by professionals like nurse practitioners. The Biden administration and the manufacturer have appealed that decision to the Supreme Court.

Rabia Muqaddam, a senior staff attorney for U.S. litigation at the Center for Reproductive Rights, said the upcoming case is the latest of many efforts over the years to curtail abortion in the United States.

“Mifepristone is one of the most important aspects of the infrastucture for patients in the U.S. and has always been essential for people in rural communities, underserved communities, communities of color to get access to abortion that is safe, effective and private,” Muqaddam said.

“That’s why they’re coming after it. They’re not coming after it because there is any basis to say that mifepristone is unsafe. There certainly isn’t. They’re coming after it because the anti-abortion movement’s goal is to eliminate abortion nationwide, and they see this as the next lever they can use to do that.”

The Supreme Court is expected to hear arguments in the new year and issue a ruling by the end of June.

If mifepristone is restricted, patients could still use the second pill in the protocol, misoprostol, to successfully terminate a pregnancy. However, doing so requires a higher-than-otherwise dosage and can cause increased cramping, bleeding, nausea, vomiting and diarrhea.

“That is not going to be best for the patient to take less effective medication with more side effects,” Soon said.

Next Steps Are Uncertain

Whether Hawaii would have any room to counter an unfavorable decision is yet to be seen, according to Lisa Humes-Schulz, vice president of policy and communications for Planned Parenthood Alliance Advocates.

“This is truly an unprecedented attack on the FDA’s approval process of such a safe and effective medication, so until we see exactly how the court rules, it’s difficult to speculate what action states can take,” she said.

Meanwhile, Planned Parenthood is urging Hawaii lawmakers to pass the which would require health insurance companies to cover reproductive health care, including abortion, without a copay.

Lawmakers and Green this year to allow physician assistants to perform abortions and to allow minors to access services without parental consent. Hawaii also proclaimed last year it will not cooperate with efforts by other state law enforcement agencies to prosecute abortion providers.

But Chelius said the state could do more to expand access to abortion care, including making surgical abortion available at existing medical facilities on the neighbor islands.

Those who seek abortion in Hawaii come from every walk of life, Soon said, and their reasons are numerous. More than half of these patients are , according to Soon. 

“Sometimes it’s a very, very wanted pregnancy. But something happened, some complications medically with either the pregnancy itself, the fetus itself, or the pregnant person, or a relationship ended or they lost their job or something is going on with their other kids,” she said.

American women will have an abortion, Soon noted. In her view, no one should judge them for it.  

“I wish there was more empathy,” Soon said. “That people could start to put themselves in their neighbors’ shoes or in their family’s shoes. It’s not a black and white issue, and I can’t tell you how many people I’ve seen in front of me requesting an abortion – they never thought they’d be in this situation. They don’t believe in abortion. They think it’s wrong, but ‘I just can’t have this baby right now.’”