The Supreme Court ensures broad access to the abortion pill for the time being
WASHINGTON — The Supreme Court Friday night said the abortion pill mifepristone would remain widely available for now, delaying the potential for an abrupt end to a drug used in more than half of abortions in the United States.
The order halted moves that had attempted to limit the availability of mifepristone while an appeals case progresses: a ruling by a Texas federal judge to suspend the drug from the market entirely, and another by an appellate court to impose significant obstacles on the pill, including access by lock mail
The unsigned, one-paragraph order, issued hours before the restrictions went into effect, was the second time in a year that the Supreme Court considered a major effort to severely restrict access to abortion.
The case could ultimately have profound implications, even for states where abortion is legal, as well as for the FDA’s regulator of other drugs.
If the Texas judge’s ruling, which reversed the FDA’s approval of the pill after more than two decades, stands, it could pave the way for all sorts of challenges to the agency’s approval of other drugs and empower medical providers everywhere Challenge government policy that may affect a patient.
The Biden administration had asked the Supreme Court to intervene after the U.S. Fifth Circuit Court of Appeals allowed a number of caveats in the Texas ruling to stand, despite saying it would allow the pill to stay on the market.
In Friday’s order, Justices Clarence Thomas and Samuel A. Alito Jr. disagreed.
Judge Thomas did not provide a reason, but Judge Alito noted that the Fifth Circuit had already narrowed the broadest aspects of the Texas ruling. The FDA and the maker of the branded version of mifepristone, Danco Laboratories, “have not shown that they are likely to suffer irreparable harm” as the case proceeds before the Court of Appeals, he added.
Judge Alito expressed skepticism about the FDA’s claims that “regulatory ‘chaos'” would ensue if the lower court ruling went into effect. Alluding to a competing case filed by Washington state attorneys general in the Democratic Republic of Washington, which is believed to be a direct challenge to the Texas case, he accused the FDA of using the court system to “carry out a desired policy and do both at the same time.” to circumvent what is necessary administrative procedures and judicial review.”
This is most likely not the final word of the judges. After the Fifth Circuit hears the appeal, the matter will likely make its way back to the Supreme Court.
None of the judges appointed by President Donald J. Trump publicly disagreed.
The court’s decision is a victory for the Biden administration, at least temporarily.
President Biden welcomed the decision, saying the “administration will continue to defend the FDA’s independent expert authority to review, approve, and regulate a wide range of prescription drugs.”
The Texas ruling, he added, “would have undermined the FDA’s medical judgment and put women’s health at risk.”
A spokesman for the FDA declined to comment.
The response of the plaintiffs – a coalition of anti-abortionists and several doctors – was muted.
Erik Baptist, senior counsel at Alliance Defending Freedom, a conservative legal organization representing the coalition, said the fight will continue.
“The FDA must answer for the harm it has done to the health of countless women and girls and to the rule of law by failing to investigate the dangers of chemical-based drug abortion treatments and unlawfully removing all reasonable protections, even mail order abortions allowed,” Mr. Baptist said.
After the Supreme Court scrapped a constitutional abortion right in June, the political and legal battle shifted to medical abortion, a two-drug therapy typically used in the first 12 weeks of pregnancy.
The first drug, mifepristone, blocks the reproductive hormone progesterone, and the second, misoprostol, taken a day or two later, triggers contractions and helps the uterus expel its contents.
More than five million women in the United States have used mifepristone to terminate their pregnancy, and dozens of other countries have approved the drug for use.
The case reached justice after a quick and confused battle over the pill’s legal status.
In November, the plaintiffs filed a complaint with the Amarillo Division of the Texas federal court system, guaranteeing that the case would be brought before a single judge: Matthew J. Kacsmaryk of the US District Court for the Northern District of Texas.
Judge Kacsmaryk, an appointee of Mr. Trump, is a longtime opponent of abortion and joined the court after working at the First Liberty Institute, a conservative rights group focused on religious freedom issues.
The coalition that filed the lawsuit, the Alliance for Hippocratic Medicine, argued that the FDA improperly approved the pill in 2000 and that mifepristone is unsafe. The agency has firmly denied these claims, pointing to studies showing that serious complications are rare and less than 1 percent of patients require hospitalization.
This month, in a preliminary ruling, Judge Kacsmaryk voided the FDA’s approval of the drug and gave both parties a week to seek emergency relief before the ruling went into effect.
Less than an hour later, a Washington state federal judge, Thomas O. Rice, a representative appointed by President Barack Obama, issued a conflicting ruling in a separate lawsuit alleging mifepristone. Judge Rice prevented the FDA from restricting the pill’s availability in 17 states and the District of Columbia that were parties to the lawsuit.
The competing rulings meant the matter was almost certainly escalated to the Supreme Court.
The FDA immediately appealed Judge Kacsmaryk’s decision, and a divided panel of three judges from the Fifth Circuit in New Orleans upheld the agency’s approval of the drug and ensured that mifepristone would remain on the market.
But the panel imposed several entry barriers and partially sided with Judge Kacsmaryk as the lawsuit progressed through the courts. It blocked a number of steps the FDA had taken since 2016 to improve the drug’s availability and distribution, such as: B. Shipping by mail and prescription by non-physician medical providers.
Adam Liptak and Christina Jewett contributed coverage.