WASHINGTON – The Supreme Court on Friday halted restrictions imposed by lower courts that would have limited access to the abortion pill mifepristone, resolving for now a massive and fast moving conflict over access to the drug while the underlying lawsuit is decided.
Of immediate significance were restrictions on access to mifepristone that were set to take effect at midnight, including a requirement that Americans sit for in-person visits with doctors and a prohibition on the drug being dispensed through the mail. The Food and Drug Administration lifted those restrictions through a series of actions since first approving the drug in 2000 but a federal appeals court had put them back in place.
The Supreme Court’s decision Friday means those restrictions will not be imposed and the drug will remain available as it was prior to a series of court orders limiting access to it. As is often the case in emergency appeals, the court did not explain its reasoning.
Justices Clarence Thomas and Samuel Alito said they would have denied the Biden administration’s request and allowed the restrictions on the drug to take effect.
Such an action “would not remove mifepristone from the market,” Alito wrote in a dissent from the court’s decision. “It would simply restore the circumstances that existed (and that the government defended) from 2000 to 2016 under three presidential
administrations,” Alito wrote.
The legal battle over mifepristone, which has played out in a series of last-minute decisions and middle-of-the-night court filings, landed as the nation is still grappling with the Supreme Court’s decision last year to end the constitutional right to abortion that Roe established in 1973. With some states banning abortion in response to that ruling, access to mifepristone has become even more significant for both sides of the debate.
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Medication abortion accounts for about half of all U.S. abortions and a wide swath of government agencies and outside experts have said the drug is safer than common drugs such as Tylenol and Viagra. But the anti-abortion groups challenging the drug questioned those studies and argued that the FDA didn’t follow its own protocols and ignored contrary data as it expedited the drug’s approval.
The latest legal drama over abortion began earlier this month when a pair of federal court rulings on April 7 plunged the fate of mifepristone into uncertainty. One of those rulings, from U.S. District Judge Matthew Kacsmaryk, had the effect of invalidating the FDA’s 23-year-old approval for the drug. Days later, a federal appeals court in Louisiana sided with the Biden administration on the drug’s approval but allowed to stand the parts of Kacsmaryk’s ruling that halted efforts to expand access to the drug.
In 2016, for instance, the FDA allowed pregnant people to take the drug three weeks longer into a pregnancy. And the agency allowed pharmacists to prescribe the drug. In 2019, the FDA approved a generic version of the drug. In 2021, during the pandemic, it allowed mifepristone to be dispensed through the mail. The agency formalized that mail-order decision earlier this year.
A three-judge panel of the Louisiana-based U.S. Court of Appeals for the 5th Circuit ruled the anti-abortion groups challenging the drug waited too long to sue over its approval. But a divided panel said that wasn’t the case for subsequent efforts to expand access to the drug and it allowed Kacsmaryk decision blocking those actions to stand.
As had long been expected, the Biden administration rapidly appealed to the Supreme Court and Justice Samuel Alito, who handles emergency matters from the 5th Circuit, put all the lower court orders on hold to give both sides time to submit their briefs.
Though the Biden administration asked the Supreme Court to consider hearing arguments in the case, the fight over mifepristone now instead returns to lower courts. That means the issue could be back before the Supreme Court within a few months.
