Supreme Court Maintains Access to Abortion Drug...for Now

The U.S. Supreme Court has maintained access, for a time, to mifepristone, a drug used in combination with another medication to induce abortion in the early stages of pregnancy.

The court ruled Friday to extend a block on a lower court’s ruling that revoked the Food and Drug Administration’s approval of the mifepristone. The FDA had OK’d it in 2000. More than 5 million people have used it since then, the Los Angeles Timesreports.

A group of anti-abortion doctors based in Amarillo, Texas, had sued to challenge the approval of the medication, claiming it is unsafe. Texas-based U.S. District Judge Matthew Kacsmaryk, who was appointed by Donald Trump, ruled April 7 to suspend the FDA’s approval. Kacsmaryk is a longtime opponent of abortion rights and LGBTQ+ rights.

The U.S. Department of Justice and Danco Laboratories, which makes a brand of mifepristone, immediately appealed Kacsmaryk’s decision. A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit considered the appeal, and one judge ruled to block Kacsmaryk’s ruling altogether, the others just parts of it. The Justice Department, through Solicitor General Elizabeth Prelogar, filed an emergency appeal to the Supreme Court to put both lower courts’ rulings on hold.

The high court, by a vote of 7-2, agreed to do so while the appeals process continues. The Fifth Circuit will hear oral arguments in the case May 17.

Far-right Justices Clarence Thomas and Samuel Alito were the two dissenters. “I would deny the stay applications,” Alito wrote. “Contrary to the impression that may be held by many, that disposition would not express any view on the merits of the question whether the FDA acted lawfully in any of its actions regarding mifepristone. Rather, it would simply refuse to take a step that has not been shown as necessary to avoid the threat of any real harm during the presumably short period at issue.”

The other conservative justices, however, voted to stay the ruling. The court is generally reluctant to overturn FDA approvals. “The decision sends the case back to lower courts with a signal that most of the justices believe this challenge to the abortion pill will fail in the end,” the L.A. Times notes.

President Joe Biden and Vice President Kamala Harris praised the high court’s action. “As a result of the Supreme Court’s stay, mifepristone remains available and approved for safe and effective use while we continue this fight in the courts,” said a statement from Biden. “I continue to stand by FDA’s evidence-based approval of mifepristone,” the president said in a statement.

“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,” the abortion rights ruling the Supreme Court overturned last year, so states now have the freedom to ban or restrict abortion.

Harris issued a statement saying, “The president and I will continue to fight to protect a woman’s freedom to make decisions about her own body and access to reproductive health care, including medication abortion. No one should stand between a woman and her doctor.”

The group that filed the challenge, the Alliance for Hippocratic Medicine, is represented by the Alliance Defending Freedom, known for handling many anti-abortion and anti-LGBTQ+ efforts. ADF “downplayed” the high court’s stay, The New York Times reports. “Our case seeking to put women’s health above politics continues on an expedited basis in the lower courts,” said a statement from ADF spokesman Erik Baptist.

“The FDA must answer for the damage it has caused to the health of countless women and girls and the rule of law by failing to study how dangerous the chemical abortion drug regimen is and unlawfully removing every meaningful safeguard, even allowing for mail-order abortions,” he continued. “We look forward to a final outcome in this case that will hold the FDA accountable.”

Kacsmaryk’s ruling came the same day that another federal judge ruled that the FDA should maintain access to mifepristone. The judge, based in Washington State, “issued a contradictory decision in a separate mifepristone-related lawsuit filed by Democratic attorneys general,” The Washington Postexplains. “The judge ordered the FDA not to make any changes to the availability of the drug in 17 states and the District of Columbia, all of which are part of the litigation.”