WASHINGTON – The Supreme Court on Friday paused a rapidly developing legal battle over the abortion pill mifepristone, temporarily suspending a lower court’s ruling that imposed limits on access to the drug so that justices have more time to review the case.
The order from Justice Samuel Alito does not signal which way the court is leaning but it does temporarily delay restrictions that abortion rights advocates warned could significantly limit availability of the drug. President Joe Biden hours earlier asked the high court to intervene to block a lower court’s decision upholding those restrictions.
The order maintains the status quo on the drug’s access until Wednesday at midnight.
The Louisiana-based U.S. Court of Appeals for the 5th Circuit late Wednesday sided with the Biden administration on the central issue of whether the 23-year-old Food and Drug Administration approval of mifepristone could continue for the time being. But the court balked at later actions the FDA took to ease access to the drug.
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What that meant is that, if the appeals court order went into effect, Americans seeking mifepristone would need to get a prescription from a doctor and would need to schedule multiple doctors visits. It would mean Americans could not get the drug through the mail or through telehealth. The restrictions were set to take effect at 1 a.m. EDT Saturday.
Now before the Supreme Court is a procedural question that nevertheless has enormous consequences: Will those restrictions on the drug be left in place while the courts hash out the underlying merits of the lawsuit – a process that could take months or years – or will the FDA’s decisions to lift those restrictions remain in effect?
“If allowed to take effect, the lower courts’ orders would thwart FDA’s scientific judgment and undermine widespread reliance in a healthcare system that assumes the availability of mifepristone as an alternative to more burdensome and invasive surgical abortions,” Solicitor General Elizabeth Prelogar, representing Biden, told the Supreme Court.
“The rushed and scattershot course of this litigation since the district court’s order is profoundly unsettling to drug sponsors, healthcare providers, patients, and the public,” she added.
Alliance Defending Freedom, which is representing the coalition of anti-abortion groups that filed the lawsuit against the FDA, applauded the 5th Circuit’s decision to impose restrictions on mifepristone access.
“The 5th Circuit rightly required the agency to prioritize women’s health by restoring critical safeguards, and we’ll urge the Supreme Court to keep that accountability in place,” the group said in a Friday statement.
The FDA has said the drug is effective and has said it is as safe as common over-the-counter drugs like ibuprofen. The Department of Health and Human Services, the American Medical Association and the American College of Obstetricians and Gynecologists call mifepristone safe and effective for abortion and miscarriage care.
Alito, a conservative who authored the Supreme Court’s opinion last year overturning Roe v. Wade, is the justice assigned to handle emergency appeals from the 5th Circuit. His decision to order an “administrative stay” is a procedural one that does not provide insight into his thinking about the case. At a later stage, Alito will likely refer the high-profile appeal to the full court.
The legal fight over mifepristone has once again thrust abortion to the fore at a moment when states, doctors and people seeking the procedure are grappling with quickly shifting rules about what’s permitted. The issue has also had an effect on the nation’s politics, helping candidates and ballot initiatives supporting abortion rights.
At least 14 states have completely or almost completely banned abortion. In eight states, court orders are blocking bans from taking effect amid dozens of lawsuits challenging restrictions. That has caused some clinics to close or stop providing the procedure, forcing people to travel long distances to other states. In states where abortion is legal, clinics have been inundated with out-of-state patients.
