The Supreme Court issued an order Friday keeping federal rules in place for using the abortion drug mifepristone while the issue moves through the court system.
The high court decided to block restrictions ordered by lower courts as the case against mifepristone, a drug used to perform abortions, heads to the 5th U.S. Circuit Court of Appeals, which is slated to hear arguments in the case May 17.
Justices Clarence Thomas and Samuel A. Alito Jr. would have denied the Justice Department’s request to leave the federal rules governing mifepristone intact.
Justice Alito wrote that he did not think the Biden administration would be harmed by leaving the 5th Circuit’s stay in place. The stay limited the use of the drug instead of banning it outright.
“The stay that would apply if we failed to broaden it would not remove mifepristone from the market. It would simply restore the circumstances that existed (and that the government defended) from 2000 to 2016 under three presidential administrations,” he wrote.
The court issued a temporary stay this month allowing mifepristone to be distributed and used.
In his order last Friday, Justice Alito restored access, use and availability of mifepristone after Texas District Judge Matthew J. Kacsmaryk had ordered that the abortion pill no longer be distributed because it was unlawfully authorized by the Food and Drug Administration.
The high court’s move is a temporary win for pro-choice activists and clears up a conflict among lower courts over the FDA’s authorization of the drug — at least for now.
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.
The Biden administration said the justices should block the order from Judge Kacsmaryk, a Trump appointee, saying it undermines science and is creating chaos. Officials noted a separate district court in Washington approved the FDA’s regulation of mifepristone the same day that Judge Kacsmaryk blocked it.
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 said it cannot lawfully distribute its drug after a three-judge panel of the U.S. Court of Appeals for the 5th Circuit 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 uphold Judge Kacsmaryk’s more sweeping order.
The Eastern District of Washington, however, issued an order in a different lawsuit saying the FDA’s authorization of mifepristone was legal, approving the abortion pill’s production and distribution.
The battle over the abortion drug enraged supporters of abortion access after Judge Kacsmaryk 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 — are 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.
“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. Getting the drug 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 that should be decided by individual 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.
President Biden used the abortion pill battle as a rallying cry for activists to take action and restore national abortion rights.
“The stakes could not be higher for women across America. I will continue to fight politically-driven attacks on women’s health. But let’s be clear — the American people must continue to use their vote as their voice, and elect a Congress who will pass a law restoring the protections of Roe v. Wade,” he said
Erik Baptist, senior counsel with Alliance Defending Freedom, said the high court’s move was common practice.
“Our case seeking to put women’s health above politics continues on an expedited basis in the lower courts. The FDA must answer for the damage it has caused to the health of countless women and girls and the rule of law by failing to study how dangerous the chemical abortion drug regimen is and unlawfully removing every meaningful safeguard, even allowing for mail-order abortions. We look forward to a final outcome in this case that will hold the FDA accountable,” he said.
• This article is based in part on wire service reports.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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