Demonstrators rally in support of abortion rights at the US Supreme Court in Washington, DC, April 15, 2023.
Andrew Caballero-Reynolds | AFP | Getty Images
The Supreme Court on Friday ordered the abortion pill mifepristone to remain widely available while the trial plays out in a lower court.
The high court’s decision came in response to an emergency request by Department of Justice to block lower court decisions that would severely limit access to the drug even in some states where abortion remains legal.
The case will now be heard in the US 5th Circuit Court of Appeals. The appeals court has scheduled oral arguments for Wed., May 17 at 1 pm CT.
Mifepristone has been a flashpoint in the legal abortion battle since last summer’s Supreme Court overturned Roe v. Wade, the landmark 1973 decision that guaranteed abortion nationwide as a constitutional right.
Mifepristone, used with another drug called misoprostol, is the most common way to end a pregnancy in the US, accounting for about half of all abortions.
President Joe Biden said the court’s decision keeps mifepristone available to women and approved by the FDA to end early pregnancy. Biden said his administration will fight to protect access to mifepristone in the ongoing legal battle with the 5th Circuit Court of Appeals.
“I keep standing [the Food and Drug Administration’s] evidence-based approval of mifepristone, and my administration will continue to defend the FDA’s independent, expert authority to review, approve, and regulate a wide range of prescription drugs,” the president said.
Planned Parenthood President Alexis McGill Johnson said the reproductive health-care provider was relieved by the Supreme Court’s decision.
But McGill Johnson warned that access to mifepristone remains at risk as the legal battle plays out in the appeals court.
“While mifepristone’s approval remains intact and it remains on the market for now, patients and healthcare providers should not be at the mercy of the court system,” McGill Johnson said. “Medication abortion is still under threat – as is abortion and access to other sexual and reproductive health care.”
Justices Samuel Alito and Clarence Thomas, both conservatives, dissented in the majority of the court’s decision to grant the emergency request from the DOJ and Danco Laboratories, the distributor of the brand-name version of the drug, Mifeprex.
The DOJ and Danco, in their emergency requests, told the Supreme Court that the restrictions imposed by lower courts would effectively take mifepristone off the market for months while the FDA adjusts the drug’s label to follow orders. This would deny women access to an FDA-approved drug that is a safe alternative to surgical abortions, they argue.
Alito rejected that argument in his dissent. The justice said the FDA could only use its enforcement discretion while the litigation played out and allowed Danco to continue distributing mifepristone.
The court’s majority decision to maintain the status quo means that mifepristone remains available through mail order, and women can get the prescription drug. without having to visit the doctor in person.
However, in the dozen states that have effectively banned abortion in the past year, the drug remains unavailable. Other states also have restrictions in place that are more stringent than FDA regulations.
The national legal battle over mifepristone began with a lawsuit filed by a coalition of doctors who oppose abortion, the Alliance for Hippocratic Medicine. Those doctors sought to force the FDA to pull the drug from the US entirely.
Earlier this month, US District Judge Matthew Kacsmaryk ruled in favor of antiabortion doctors and issued a sweeping injunction that would halt the sale of mifepristone nationwide.
Days later, the US Fifth Circuit Court of Appeals blocked part of Kacsmaryk’s order and allowed Mifeprex to remain on the market. But appeals court judges imposed restrictions on the drug that would severely limit access.
An appeals court blocked the delivery of the drug by mail, imposed visits to doctors as a condition for obtaining the drug, and reduced the length of time women could take the pill to the seventh week of pregnancy.
Appeals court judges also suspended the 2019 approval of the generic version of mifepristone. The company that sells the generic version, GenBioPro, told the high court that most of the country’s supply of the drug would “disappear overnight” if the appeals court ruling goes into effect.
GenBioPro says it supplies two-thirds of the mifepristone used in abortions in the US
