The brief, paragraph-long order grants a stay on any restrictions, handing a victory to the administration of Democratic President Joe Biden and mifepristone’s manufacturer Danco Laboratories, which had appealed the lower courts’ decisions.
In response, Biden issued a statement calling on voters to take the issue of abortion access to the polls.
“The stakes could not be higher for women across America,” he wrote, promising to fight “politically driven attacks on women’s health”.
“But let’s be clear – the American people must continue to use their vote as their voice, and elect a Congress who will pass a law restoring the protections of Roe v Wade,” Biden added, citing a landmark 1973 Supreme Court decision that protected the constitutional right to abortion for nearly half a century.
That precedent was overturned in June 2022, under the court’s current six-to-three conservative majority.
Many Democrats and abortion advocates likewise hailed Friday’s decision, though they were quick to note it was a temporary stopgap while the court case over mifepristone’s availability continued.
“This fight is not over,” Massachusetts Senator Elizabeth Warren wrote on Twitter. “Extremist Republican politicians continue to chip away at women’s rights to make their own health care decisions across the nation.”
Friday’s Supreme Court decision is likely to leave mifepristone access unchanged at least until next year, as appeals continue to weigh its federal approval.
Abortion rights in the United States are under attack. Since conservatives on the Supreme Court overturned Roe v. Wade, 13 states have fully banned abortions; and on April 7, an unelected judge in Texas issued a radical decision rescinding FDA approval of the drug mifepristone. pic.twitter.com/yLZI8OMFW2
— Cory Booker (@CoryBooker) April 21, 2023
Conservative justices Clarence Thomas and Samuel Alito, however, opposed the court’s decision on Friday to leave mifepristone access unchanged.
In his dissent, Alito dismissed concerns that “regulatory chaos” would ensue if the Supreme Court enforced the restrictions on mifepristone.
He also accused the US Food and Drug Administration (FDA) – the agency that approved mifepristone in 2000 – of “evading both necessary agency procedures and judicial review”, echoing a criticism issued by a lower court in the case.
“At present, the applicants are not entitled to a stay because they have not shown that they are likely to suffer irreparable harm in the interim,” Alito wrote in his dissent, noting that the restrictions proposed would “simply restore the circumstances that existed” from 2000 to 2016.
His opinion, he added, did not “express any view” about “whether the FDA acted lawfully in any of its actions regarding mifepristone”, which is the central issue in the ongoing litigation.
US District Judge Matthew Kacsmaryk had granted a request from anti-abortion plaintiffs on April 7 to temporarily suspend mifepristone’s approval while he weighed a case over whether the FDA had erred in authorising the medication more than 20 years ago.
An anti-abortion rights coalition, called the Alliance for Hippocratic Medicine, was among the plaintiffs suing the FDA over its mifepristone approval.
Kacsmaryk’s injunction would have effectively removed mifepristone from the US market. But his decision offered seven days for the Biden administration to appeal before the injunction took effect.
The administration’s appeal took the case to New Orlean’s 5th Circuit Court of Appeals on April 12, which kept mifepristone available but also upheld restrictions from Kacsmaryk’s decision that would have rolled back access to 2016 standards.
Those restrictions included allowing the use of mifepristone only up to seven weeks of pregnancy, rather than 10 weeks, as the FDA has allowed in recent years. It would also require multiple in-person doctor visits and bar mifepristone from being sent through the mail.
This is a developing news story. More updates to follow.