The US Supreme Court has preserved women’s access to a drug used in the most common method of abortion, rejecting lower-court restrictions while a lawsuit continues.
Key points:
- Mifepristone has been approved for use in the US since 2000
- The court’s action on Friday almost certainly will leave access to Mifepristone unchanged at least into next year
- The Supreme Court overturned Roe vs Wade 10 months ago and allowed more than a dozen states to effectively ban abortion outright
The justices granted emergency requests from the Biden administration and New York-based Danco Laboratories, maker of the drug Mifepristone.
They are appealing against a lower-court ruling that would roll back the US Food and Drug Administration’s (FDA) approval of Mifepristone.
The drug has been approved for use in the US since 2000 and more than 5 million people have used it.
Mifepristone is used in combination with a second drug, Misoprostol, in more than half of all abortions in the US.
The court’s action Friday almost certainly will leave access to Mifepristone unchanged at least into next year as appeals play out, including a potential appeal to the High Court.
Justices Samuel Alito, the author of last year’s decision overturning Roe vs Wade, and Clarence Thomas voted to allow restrictions to take effect. No other justices commented.
The justices weighed arguments that allowing restrictions contained in lower-court rulings to take effect would severely disrupt the availability of Mifepristone.
The Supreme Court had initially said it would decide by Wednesday whether the restrictions could take effect while the case continued. A one-sentence order signed by Justice Alito on Wednesday gave the justices two additional days, without explanation.
Abortion opponents target drugs
The challenge to Mifepristone, brought by opponents to abortion, is the first abortion controversy to reach the nation’s highest court since its conservative majority overturned Roe vs Wade 10 months ago and allowed more than a dozen states to effectively ban abortion outright.
In his majority opinion last June, Justice Alito said one reason for overturning Roe vs Wade was to remove federal courts from the abortion fight.
“It is time to heed the constitution and return the issue of abortion to the people’s elected representatives,” he wrote.
But even with their court victory, abortion opponents returned to the Federal Court with a new target: medication abortions, which make up more than half of all abortions in the United States.
Women seeking to end their pregnancies in the first 10 weeks without more invasive surgical abortion can take Mifepristone, along with Misoprostol.
The FDA has eased the terms of Mifepristone’s use over the years, including allowing it to be sent through the mail in states that allow access.
The abortion opponents filed a suit in Texas in November, asserting that the FDA’s original approval of Mifepristone 23 years ago and subsequent changes were flawed.
They won a ruling on April 7 by US District Judge Matthew Kacsmaryk, an appointee of former president Donald Trump, revoking FDA approval of Mifepristone.
The judge gave the Biden administration and Danco Laboratories a week to appeal against the ruling and seek to keep it on hold.
Responding to a quick appeal, two more Trump appointees on the fifth US Circuit Court of Appeals said the FDA’s original approval would stand for now.
But judges Andrew Oldham and Kurt Englehardt said most of the rest of Judge Kacsmaryk’s ruling could take effect while the case went through federal courts.
Ruling would nullify changes made by FDA
Their ruling would effectively nullify changes made by the FDA starting in 2016, including extending from seven to 10 weeks of pregnancy when Mifepristone can be safely used.
The court also said the drug cannot be mailed or dispensed as a generic and that patients who seek it need to make three in-person visits with a doctor.
Women also might be required to take a higher dosage of the drug than the FDA says is necessary.
The administration and Danco have said that chaos would ensue if those restrictions were to take effect while the case proceeded.
Potentially adding to the confusion, a federal judge in Washington has ordered the FDA to preserve access to Mifepristone under the current rules in 17 Democratic-led states and the District of Columbia that filed a separate lawsuit.
The Biden administration has said the rulings conflict and create an untenable situation for the FDA.
And a new legal wrinkle threatened even more complications. GenBioPro, which makes the generic version of Mifepristone, filed a lawsuit on Wednesday to pre-emptively block the FDA from removing its drug from the market in the event that the Supreme Court does not intervene.
The Supreme Court was only being asked to block the lower-court rulings through the end of the legal case.
The New Orleans-based fifth circuit already has ordered an accelerated schedule for hearing the case, with arguments set for May 17. The court gave no timetable for a ruling.
Any appeal to the Supreme Court would follow within three months of a ruling, but with no deadline for the justices to decide whether to review the case.
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AP