Supreme Court preserves access to abortion pill for now

The Supreme Court says the mifepristone rules will remain in effect while the case is processed by lower courts.

(Jacquelyn Martin | AP) Staffers of the Progressive Anti-Abortion Uprising group, San Francisco’s Kristin Turner, left, Washington’s Lauren Handy, and Washington’s Caroline Smith, right, demonstrate in front of the Supreme Court against abortion pills. Friday, April 21, 2023, before an abortion pills court decision in Washington.

washington • The Supreme Court on Friday preserved women’s access to a drug used in the most common method of abortion, rejecting restrictions by lower courts while a court case continues.

The judges granted emergency requests from the Biden administration and New York-based Danco Laboratories, makers of the drug mifepristone. They are appealing a lower court ruling that would reverse the Food and Drug Administration’s approval of mifepristone.

The drug has been approved in the US since 2000 and has been used by more than 5 million people. Mifepristone, in combination with a second drug, misoprostol, is used in more than half of all abortions in the United States

The court’s lawsuit on Friday will almost certainly leave access to mifepristone unchanged at least into next year pending appeals, including a possible appeal to the Supreme Court.

Justices Samuel Alito, the author of last year’s decision overturning Roe v. Wade, and Clarence Thomas voted to allow restrictions to go into effect. No other judge commented.

President Joe Biden commended the Supreme Court for keeping mifepristone available while the court battle rages on.

“The stakes for women across America couldn’t be higher. I will continue to fight against politically motivated attacks on women’s health. But let’s be clear – the American people must continue to use their voice as their voice and elect a Congress that will pass legislation protecting Roe v. Wade recovers,” Biden said in a statement.

The judges weighed arguments that the enactment of restrictions contained in lower court rulings would seriously affect the availability of mifepristone.

The Supreme Court initially announced that it would decide by Wednesday whether the restrictions could take effect during the ongoing proceedings. A one-sentence order signed by Alito on Wednesday gave the judges two extra days without an explanation.

The mifepristone challenge, brought by anti-abortion advocates, is the first abortion controversy to reach the nation’s highest court since its conservative majority, Roe v. Wade 10 months ago, allowing more than a dozen states to effectively ban abortion.

In his majority opinion last June, Alito said one reason Roe’s ouster was to take the federal courts out of the abortion fight. “It is time to respect the Constitution and return the issue of abortion to the elected representatives of the people,” he wrote.

But despite their court victory, anti-abortion advocates returned to federal court with a new goal: medical abortions, which account for more than half of all abortions in the United States.

Women who want to terminate their pregnancy in the first 10 weeks without a more invasive surgical abortion can take mifepristone along with misoprostol. The FDA has relaxed conditions for mifepristone’s use over the years, including allowing it to be mailed to states that allow access.

Anti-abortion activists filed a lawsuit in Texas in November, alleging that the FDA’s original approval of mifepristone 23 years ago and subsequent amendments were flawed.

They won an April 7 decision by U.S. 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 and try to have his sentence on hold.

In response to a swift appeal, two other Trump commissioners on the U.S. Fifth Circuit Court of Appeals said the FDA’s original approval would stand for now. However, Justices Andrew Oldham and Kurt Englehardt said the remainder of Kacsmaryk’s ruling could go into effect while the case progresses through federal courts.

Their decision would effectively undo changes made by the FDA starting in 2016, including extending gestation from seven to 10 weeks when mifepristone is safe to use. The court also said the drug cannot be shipped or dispensed as a generic and that patients who want it must make three in-person visits to a doctor. Women may also need to take a higher dose of the drug than the FDA believes is necessary.

Administration and Danco have said chaos would ensue if these restrictions came into effect during the proceedings. A federal judge in Washington may have added to the confusion by ordering the FDA to allow access to mifepristone under current regulations in 17 Democratic-ruled states and the District of Columbia, which has filed a separate lawsuit.

The Biden administration said the rulings are contradictory 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 Wednesday to preemptively prevent the FDA from withdrawing its drug from the market if the Supreme Court doesn’t intervene.

The Supreme Court was only asked to block the decisions of the lower courts until the end of the legal battle.

The New Orleans-based 5th Circuit has already ordered an expedited timeline to hear the case, with arguments scheduled for May 17. The court did not give a timeline for a decision.

Any appeal to the Supreme Court would be made within three months of a ruling, but with no time limit for the judges to decide whether to review the case.

Justin Scaccy

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