The Justice Department announced Thursday it will ask the Supreme Court to let the administration continue to distribute the abortion pill via mail and through 10 weeks of pregnancy after those regulations were halted by a federal appeals court.
“We will be seeking emergency relief from the Supreme Court to defend the FDA’s scientific judgment and protect Americans’ access to safe and effective reproductive care,” said Attorney General Merrick Garland.
The move comes after the 5th U.S. Circuit Court of Appeals ruled on Wednesday that the abortion pill mifepristone could still be dispensed up to seven weeks of pregnancy, but had blocked its delivery through the mail — for now.
The move limited a lower court ruling that said the Food and Drug Administration could not distribute the pill, which is used as the most common method of abortion in the U.S.
The three-judge panel’s Wednesday decision is temporary, as the case continues to work its way through the courts. The court ordered oral arguments to be scheduled, though a date has not been set on the docket.
The Justice Department’s emergency request to the high court could undo the lower court’s decision to limit the use of the drug.
Mifepristone was approved by the FDA during the Clinton administration and is used with misoprostol to terminate a pregnancy.
Judge Matthew Kacsmaryk, a Trump appointee, ruled last week the FDA could not continue to approve the pill in a case brought by pro-life advocates and physicians who argued women have had grave health consequences from using the pill.
Just before midnight Wednesday, the 5th U.S. Circuit Court of Appeals disagreed in a 2-1 ruling.
Of the three on the bench, Judge Kurt Engelhardt and Judge Andrew Oldham are Trump appointees. Judge Catharina Haynes, a George W. Bush appointee, said she would expedite the case for oral arguments but put the lower court block on hold entirely.
The court’s ruling said the drug could still be dispensed — but not through the mail as regulators had begun to allow in 2016, and only up to seven weeks of pregnancy, not 10 weeks.
“Mifepristone users who present themselves to the plaintiffs have required blood transfusions, overnight hospitalization, intensive care and even surgical abortions,” the court wrote in its ruling. “As a result of FDA’s failure to regulate this potent drug, these doctors have had to devote significant time and resources to caring for women experiencing mifepristone’s harmful effects.”
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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