The US Supreme Court has decided to maintain women’s access to a drug commonly used in abortions, rejecting lower-court restrictions while a lawsuit continues. The drug in question is mifepristone, which is used in combination with misoprostol in more than half of all abortions in the US. The drug has been approved for use in the country since 2000, with more than five million people having used it. The justices granted emergency requests from the Biden administration and Danco Laboratories, which makes mifepristone. They are appealing a lower court ruling that would roll back Food and Drug Administration (FDA) approval of the drug. Two of the nine justices voted to allow restrictions to take effect, with Justice Samuel Alito issuing a four-page dissent. The next stop for the case is at the US Court of Appeals for the 5th Circuit, which has set arguments for May 17.
The challenge to mifepristone is the first abortion controversy to reach the Supreme Court since its conservative majority overturned Roe v. Wade 10 months ago and allowed more than a dozen states to effectively ban abortion outright. Even with their court victory, abortion opponents returned to federal court with a new target: medication abortions, which make up more than half of all abortions in the US. 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 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 and seek to keep his ruling on hold. Responding to a quick appeal, two more Trump appointees on the 5th U.S. Circuit Court of Appeals said the FDA’s original approval would stand for now.
Their ruling would have effectively nullified 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 would have halted sending the drug in the mail or dispensing it as a generic, and patients who seek it would have had to make three in-person visits with a doctor. Women also might have been 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 proceeds. 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.
President Joe Biden praised the high court for keeping mifepristone available while the court fight continues. “The stakes could not be higher for women across America. I will continue 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,” he said in a statement.
The justices weighed arguments that allowing restrictions contained in lower-court rulings to take effect would severely disrupt the availability of mifepristone. Alito questioned the argument that chaos would result, saying the administration “has not dispelled doubts that it would even obey an unfavorable order in
