The Supreme Court has extended until Friday a stay to keep in place federal rules for using the abortion drug mifepristone, giving breathing room for the court to review arguments over the issue.
The high court originally issued a five-day stay last Friday and extended the stay until April 21, according to an order Justice Samuel A. Alito Jr. issued on Wednesday.
In his order last Friday, Justice Alito restored the status quo for access, use and availability of mifepristone. A Texas judge had ordered that the abortion pill no longer be distributed because it was unlawfully authorized.
The stay is a temporary win for pro-choice activists and clears up a conflict among lower courts over the Food and Drug Administration’s authorization of the drug.
The court’s involvement came after the Justice Department and a producer of mifepristone asked the high court to step in after a lower court limited the pill’s use earlier this month.
The Biden administration said the justices should block the order from Texas District Judge Matthew J. Kacsmaryk, saying it undermines science and is creating chaos. Officials noted a separate district court in Washington that approved the FDA’s regulation of mifepristone.
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 U.S. Court of Appeals for the 5th Circuit 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 up to seven weeks into pregnancy, instead of the FDA-approved 10 weeks. It didn’t totally uphold Judge Kacsmaryk’s more sweeping order.
The Eastern District of Washington, however, earlier this month issued an order in a different lawsuit 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, ruled the FDA’s approval of mifepristone was unlawful.
He said 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,” he said.
Days later, the 5th Circuit disagreed in a 2-1 ruling.
Two of the judges — Kurt Engelhardt and Andrew Oldham — were Trump appointees. Judge Catharina Haynes, a Bush appointee, said she would expedite the case for oral arguments but put the lower court block on hold entirely.
The circuit court’s ruling last Wednesday 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 into pregnancy.
“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.”
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 drug misoprostol. A third visit with a doctor was required to address complications.
The high court’s conservative majority ruled in June that abortion is an issue for the states, overturning the landmark 1973 Roe v. Wade decision that set a national right to abortion.
The move has angered Democrats and pro-choice advocates. As the high court mulls what to do with the abortion pill, Democrats on the Senate Judiciary Committee have scheduled an April 26 hearing on reproductive rights.
• This article is based in part on wire service reports.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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