Protesters gather in support of abortion rights outside the US Supreme Court in Washington, DC on April 15, 2023.
Andrew Caballero-Reynolds | AFP | Getty Images
On Friday, the Supreme Court ordered the abortion pill mifepristone to remain widely available as the litigation unfolds in a lower court.
The High Court’s decision followed an urgent request from the justice department to block lower court rulings that would significantly limit access to drugs, even in some states where abortion remains legal.
The case will now be heard in the United States Court of Appeals for the 5th Circuit. The appeals court has scheduled oral arguments for Wednesday, May 17 at 1 p.m. CT.
Mifepristone has become the flashpoint of the abortion legal battle since the Supreme Court last summer overturned Roe v. Wade, the landmark 1973 decision that guaranteed abortion nationwide as a constitutional right.
Mifepristone, used in combination with another drug called misoprostol, is the most common method of terminating a pregnancy in the United States, accounting for about half of all abortions.
President Joe Biden said the court ruling keeps mifepristone available to women and the FDA has approved termination of teenage pregnancies. Biden said his administration will fight to protect access to mifepristone in the ongoing legal battle in the 5th Circuit Court of Appeals.
“I continue to uphold the (Food and Drug Administration’s) evidence-based approval of mifepristone, and my administration will continue to uphold the independent and expert authority of the FDA to review, approve and regulate a wide range of drugs. by prescription,” the president said. .
Planned Parenthood President Alexis McGill Johnson said the reproductive healthcare provider was relieved by the Supreme Court’s decision.
But McGill Johnson has warned that access to mifepristone remains under threat as the legal battle unfolds in the appeals court.
“While mifepristone’s approval remains intact and remains on the market at this time, patients and healthcare providers should not be at the mercy of the legal system,” said McGill Johnson. “Medical abortion is still at high risk, as are abortion and access to other sexual and reproductive health care.”
Justices Samuel Alito and Clarence Thomas, both conservatives, opposed the court’s majority decision to grant the emergency request from the DOJ and Danco Laboratories, the distributor of the branded version of the drug, Mifeprex.
The DOJ and Danco, in their emergency petitions, told the Supreme Court that the restrictions imposed by the lower courts would effectively take mifepristone off the market for months, with the FDA adjusting the drug’s labeling to comply with the orders. This would prevent women from having access to an FDA-approved drug that is a safe alternative to surgical abortions, they argued.
Alito rejected this argument in his dissent. The court said the FDA could simply use its enforcement discretion as the litigation unfolded and allow Danco to continue distributing mifepristone.
The court’s majority decision to maintain the status quo means that mifepristone remains available by mail and women can get the drugs by prescription. without having to see a doctor in person.
However, in the dozen states that have effectively banned abortion in the past year, the drug will remain largely unavailable. Other states also have much stricter restrictions in place than FDA regulations.
The national legal battle over mifepristone began with a lawsuit brought by a coalition of physicians who oppose abortion, the Hippocratic Medicine Alliance. These doctors sought to force the FDA to remove the drug from the United States entirely.
Earlier this month, U.S. District Judge Matthew Kacsmaryk ruled in favor of anti-abortion doctors and issued a sweeping order that would have halted sales of mifepristone nationwide.
A few days later, the United States Court of Appeals for the Fifth Circuit blocked part of Kacsmaryk’s order and allowed Mifeprex to remain on the market. But the appeals court judges imposed restrictions on the drugs that would severely limit access.
The appeals court blocked delivery of the drug by post, made doctor visits a condition for obtaining the drug, and reduced the length of time women can take the pill to the seventh week of pregnancy.
Appeals court judges also suspended approval in 2019 of the generic version of mifepristone. The company that sells the generic version, GenBioPro, told the High Court that the majority of the national drug supply would “disappear overnight” if the court of appeal’s ruling comes into effect.
GenBioPro said it supplies two-thirds of mifepristone used in abortions in the United States