WASHINGTON – The Biden administration said Thursday it will ask the Supreme Court to intervene so that Americans can continue to have expanded access to the abortion pill mifepristone, including through mail orders and without having to visit a doctor.
“The Justice Department strongly disagrees with the Fifth Circuit’s decision in Alliance for Hippocratic Medicine v. FDA to deny in part our request for a stay pending appeal,” Attorney General Merrick Garland said. “We will be seeking emergency relief from the Supreme Court to defend the FDA’s scientific judgment and protect Americans’ access to safe and effective reproductive care.”
The announcement came hours after a federal appeals court in Louisiana sided with the Biden administration on a key issue in an ongoing legal fight – whether the 23-year-old Food and Drug Administration approval of the drug could continue – but balked at later actions by the agency in 2016 and 2021 that expanded access to the drug.
The appeal will mark the most significant abortion dispute to reach the Supreme Court since a 5-4 majority last year overturned Roe v. Wade, the landmark 1973 decision that established a constitutional right to abortion. That decision prompted several states to ban in-clinic abortions, which in turn has heighted attention on access to the drug.
How soon will the Supreme Court rule on mifepristone?
- Assuming the Biden administration sends up its appeal to the Supreme Court on Thursday, the justices won’t have much time to address it. A temporary pause set by a lower court on changes to the drug’s approval will expire Friday. The high court could, and often does, issue a short-term stay pausing any changes for a few days.
- The appeal will arrive on the Supreme Court’s emergency docket, which some critics have dubbed the shadow docket. The court moves quickly with those cases, usually handing down an initial decision without oral arguments or extended briefing.
What’s at stake in the Supreme Court appeal over mifepristone?
The big fight over mifepristone was initially about its approval: Did the Food and Drug Administration properly approve the drug during the Clinton administration?
In a middle-of-the-night decision from the U.S. Court of Appeals for the 5th Circuit put that issue to rest in the short term, asserting that the anti-abortion groups who were challenging the FDA had likely waited too long to file their lawsuit. That means the underlying approval of the drug should continue while the lawsuit plays out.
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But the court also said that certain efforts to expand access to the drug approved by the FDA in 2016 and later could be put on hold until the outcome of the litigation is clear. Those approvals include allowing non-doctors to prescribe and administer and drug and allowing mifepristone to be sent through the mail.
