The Supreme Court on Friday said it would temporarily keep in place federal rules for using the abortion drug, giving breathing room for the high court to hear arguments over the issue.
The five-day stay from Supreme Court Justice Samuel A. Alito Jr. restores the status quo for access, use and availability of the abortion pill mifepristone.
Justice Alito in a one-page order asked for further briefings on the dispute by April 18.
The pause is a temporary win for pro-choice activists, and it clears up a conflict among lower courts over the Food and Drug Administration’s authorization of the drug.
The Biden administration on Friday morning asked the Supreme Court to block last Friday’s order from Texas District Judge Matthew J. Kacsmaryk, a Trump appointee who ruled the pill was unlawfully authorized by the FDA. The Justice Department argued the ruling undermines science and is creating chaos, noting that another district court in Washington state on the same day approved the FDA’s regulation of the drug.
The government’s appeal was filed on the same day that Danco Laboratories, a producer of the abortion pill mifepristone, asked the Supreme Court to block the Texas ruling and take up the legal challenge over whether the drug can lawfully be distributed across the country.
Danco says it cannot lawfully distribute its drug after the 5th U.S. Circuit Court of Appeals this week limited its use, cutting back on some of the regulations issued by the FDA in 2016.
The 5th Circuit ruled that the drug cannot be sent via the mail and can be used only up to seven weeks into pregnancy, instead of the FDA-approved 10 weeks. It didn’t totally uphold Judge Kacsmaryk’s more sweeping order, issued last Friday.
The Eastern District of Washington, however, last Friday issued a separate order in a different lawsuit over the drug, saying the FDA’s authorization of mifepristone is legal, greenlighting the abortion pill’s production and distribution.
The battle over the abortion drug enraged supporters of abortion access after Judge Kacsmaryk, a Trump appointee, said the FDA’s approval of mifepristone was unlawful.
He ruled the FDA could not continue to approve the pill in a case brought by pro-life advocates and physicians who argued that women have had grave health consequences from using the pill.
Judge Kacsmaryk said in his decision that the court “does not second-guess FDA’s decision-making lightly.”
“But here, FDA acquiesced on its legitimate safety concerns — in violation of its statutory duty — based on plainly unsound reasoning and studies that did not support its conclusions.”
Just before midnight Wednesday, the 5th U.S. Circuit Court of Appeals disagreed in a 2-1 ruling.
Two of the judges, 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.
“Mifepristone users who present themselves to the plaintiffs have required blood transfusions, overnight hospitalization, intensive care, and even surgical abortions,” the three-judge panel wrote in the 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.”
Justice Alito is in charge of emergency appeals for the 5th Circuit.
The drug was originally approved in 2000 for up to seven weeks of pregnancy. But it was not sent through the mail. It required three steps: first a visit with a doctor to receive the mifepristone, and then another one to get the misoprostol. There was also routinely a third visit with a doctor to address complications, according to The Associated Press.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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