Demonstrators gather in support of abortion rights in front of the US Supreme Court in Washington, DC on April 15, 2023.
Andrew Caballero-Reynolds | AFP | Getty Images
The Supreme Court on Friday ruled that the abortion pill mifepristone should remain widely available while the case is being played out in a lower court.
The Supreme Court’s decision came in response to an emergency request from the Justice Department to block lower court decisions that would severely restrict access to medicines even in some states where abortion is legal.
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The case is now before the US 5th Circuit Court of Appeals. The appeals court has scheduled hearings for Wednesday, May 17 at 1:00 pm CT.
Mifepristone has become a central focus of abortion litigation since the Supreme Court ruled Roe v. Wade repealed the landmark 1973 ruling that guaranteed abortion as a constitutional right nationwide.
Mifepristone, used in combination with another drug called misoprostol, is the most common method of abortion in the United States, accounting for about half of all abortions.
Justices Samuel Alito and Clarence Thomas, both Conservatives, defied the Supreme Court’s majority decision to grant the emergency motion by the Biden administration and Danco Laboratories, distributor of the brand-name version of the drug Mifeprex.
The Justice Department and Danco told the Supreme Court in their urgent motions that the restrictions imposed by the lower courts would keep mifepristone off the market for months as the FDA adjusted the drug’s labeling to comply with the orders. This would deny women access to an FDA-approved drug that offers a safe alternative to surgical abortions, they argued.
Alito rejected this argument in his dissent. The judiciary said the FDA could simply use its enforcement discretion while the litigation unfolded and allow Danco to continue marketing mifepristone.
The national litigation over mifepristone began with a lawsuit brought by a coalition of anti-abortion physicians, the Alliance for Hippocratic Medicine. These doctors tried to force the Food and Drug Administration to withdraw the drug from the United States entirely.
Earlier this month, US District Judge Matthew Kacsmaryk ruled in favor of anti-abortion activists, issuing a sweeping order that would have halted the nationwide sale of mifepristone.
Days later, the U.S. Fifth Circuit Court of Appeals blocked part of Kacsmaryk’s order, allowing the brand-name version of the drug, Mifeprex, to remain on the market. But the appeals court judges imposed restrictions on the drugs that would severely limit access.
The appeals court blocked mail delivery of the drug, made doctor visits a condition of receiving the drug, and reduced the length of time women can take the pill to the seventh week of pregnancy.
The appeals court judges also stayed the approval of the generic version of mifepristone for 2019. The company that sells the generic version, GenBioPro, told the Supreme Court that the majority of the nation’s supply of the drug would “disappear overnight” if the Court of Appeals ruling went into effect.
GenBioPro says it supplies two-thirds of the mifepristone used in abortions in the US
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