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The Supreme Court announced Wednesday it will review the legality of the abortion pill — specifically the drug mifepristone— setting up a major abortion-related showdown following the upending of Roe v. Wade last year.
In an order issued by the high court, the justices said they’ll hear Food and Drug Administration v. Alliance Hippocratic Medicine and Danco Laboratories v. Alliance Hippocratic Medicine.
The FDA’s case is one of the most closely watched petitions from the Justice Department, which appealed a lower court ruling restricting the use of mifepristone.
The justices will consider how long the pill can be prescribed during pregnancy and if it can be mailed as federal officials had proposed in recent administrative changes.
However, the court rejected another case from a group of pro-life doctors asking the justices to review the pill’s initial FDA approval two decades ago.
The high court last year overturned Roe v. Wade, the landmark 1973 case that established a national right to abortion, returning jurisdiction on the procedure to the states. Since then, roughly 14 states have moved to ban the procedure other than for an exception to save the life of the mother. A handful of states have moved to ban it after six to 15 weeks of pregnancy.
It took at least four justices to vote in favor of hearing the abortion pill dispute.
Oral arguments are likely to occur in the spring, with a decision to come by the end of June.
The pill has remained available during the appellate process after the Supreme Court placed the lower court ruling on hold. But the 5th U.S. Circuit Court of Appeals had restricted the usage of the pill, saying it could not be distributed via mail and used only until seven weeks of pregnancy.
A district court had gone further, ruling that the drug should not have been authorized by the Food and Drug Administration.
Danco Laboratories, a producer of mifepristone, also petitioned the high court over its production of the pill, challenging the lower court’s restrictions on its distribution.
Mifepristone, approved by the FDA during the Clinton administration, is used with misoprostol to terminate a pregnancy.
The abortion pill accounts for more than half of abortions in the United States and more than 5 million people have used it since 2000, according to The Associated Press.
On the pill
The battle over the drug enraged supporters of abortion after U.S. District Judge Matthew Kacsmaryk, a Trump appointee, last year 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.
The 5th Circuit disagreed and did not uphold Judge Kacsmaryk’s ruling that the pill was unlawfully authorized by the FDA.
Instead, the circuit 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 into pregnancy.
The drug was approved in 2000 for up to seven weeks of pregnancy, but it was not sent through the mail. Its administration required three steps: first a visit with a doctor to receive mifepristone and then another one to get the drug misoprostol. A third visit was required to address complications.
Erin Hawley, senior counsel for Alliance Defending Freedom, which represents the pro-life doctor group opposing the pill, said the FDA has removed common sense safeguards for women, making it dangerous to mail the drug.
“The FDA has harmed the health of women and undermined the rule of law by illegally removing every meaningful safeguard from the chemical abortion drug regimen. Like any federal agency, the FDA must rationally explain its decisions. Yet its removal of common-sense safeguards — like a doctor’s visit before women are prescribed chemical abortion drugs — does not reflect scientific judgment but rather a politically driven decision to push a dangerous drug regimen,” Ms. Hawley said.
Pro-life advocates said the high court’s arguments will show how “dangerous mail-order abortion” is.
“Working hand-in-glove with the abortion lobby, the FDA has misled the American people with its repeated claims that the abortion pill regimen is ‘safe and effective,’ all while they removed basic safeguards like in-person doctor supervision. This not only flies in the face of science and common sense, but the 5th Circuit agreed it most likely broke the law. The people aren’t buying it, either – especially when they learn the FDA doesn’t track serious complications other than death,” said Katie Daniel, state policy director for Susan B. Anthony Pro-Life America.
Pro-choice advocates cheered the decision to take up the case, saying it would review an “erroneous ruling” curtailing access to the drug.
“Now the question is whether the Court will do the right thing and reject the radical arguments of the Plaintiffs in what should be a clear cut case. The Court has never invalidated a long-standing FDA approval like they are being asked to do here. The stakes are enormous in post-Roe America. Even those living in states with strong protections for abortion rights could have their ability to access mifepristone severely restricted if the Court rules against the FDA. In the wake of the Supreme Court’s reversal of Roe v. Wade, abortion via medication that can be prescribed in a telehealth visit and delivered to the privacy of one’s home has been critical,” said Nancy Northup, president and CEO of the Center for Reproductive Rights.
White House press secretary Karine Jean Pierre said the 5th Circuit’s decision threatens to undermine science.
“This administration will continue to stand by FDA’s independent approval and regulation of mifepristone as safe and effective. As the Department of Justice continues defending the FDA’s actions before the Supreme Court, President Biden and Vice President Harris remain firmly committed to defending women’s ability to access reproductive care. We continue to urge Congress to pass a law restoring the protections of Roe v. Wade — the only way to ensure the right to choose for women in every state,” she said.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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