WASHINGTON — The Supreme Court on Friday upheld women’s access to a drug used in the most common method of abortion, rejecting lower court restrictions while the case remains open. continue.
The judges approved urgent requests from the Biden administration and New York-based Danco Laboratories, the maker of the drug mifepristone. They are appealing a lower court ruling that would withdraw the Food and Drug Administration’s approval of mifepristone.
The drug has been approved for use in the US since 2000 and has been used by more than 5 million people. Mifepristone is used in combination with a second drug, misoprostol, in more than half of all abortions in the United States.
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The Supreme Court initially said it would decide on Wednesday whether the restrictions could go into effect while the case continued. The one-sentence order signed by Judge Samuel Alito on Wednesday gave the judges two extra days without explanation.
The challenge to mifepristone, raised by enemies of abortion, is the first abortion controversy to reach the nation’s highest court since the conservative majority overthrew Roe v. Wade 10 months ago and allowed more than a dozen states to ban abortion altogether.
In his majority opinion, Alito said one reason to overturn Roe was to remove the federal courts from the abortion war. “The time has come to abide by the Constitution and return abortion to elected representatives,” he wrote.
But even with their court victory, abortion opponents have returned to federal court with a new goal: medical abortion, which accounts for more than half of all abortions in the United States.
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Women who want to end a pregnancy within the first 10 weeks without a more invasive surgical abortion can take mifepristone along with misoprostol. The FDA has relaxed the terms of mifepristone use over the years, including allowing mifepristone to be mailed in accessible states.
Opponents of abortion filed a lawsuit in Texas in November, asserting that the FDA’s initial approval of mifepristone 23 years ago and subsequent changes were erroneous.
They won the April 7 ruling by U.S. District Judge Matthew Kacsmaryk, appointed by former President Donald Trump, to revoke FDA approval of mifepristone. The judge gave the Biden administration and New York-based Danco Laboratories, the maker of mifepristone, one week to appeal and seek to uphold his ruling.
Responding to a swift appeal, two more Trump appointees in the US 5th Circuit Court of Appeals said the initial FDA approval would go into effect now. But Judges Andrew Oldham and Kurt Englehardt said much of Kacsmaryk’s remaining ruling could go into effect while the case moves through the federal courts.
Their ruling will effectively nullify changes made by the FDA starting in 2016, including extending 7 to 10 weeks of pregnancy when mifepristone can be used safely. The court also said that the drug could not be mailed or distributed as a generic and that patients who wanted to purchase the drug needed to visit their doctor three times in person. Women may also be asked to take a higher dose of the drug than the FDA deems necessary.
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The authorities and Danco have said chaos would ensue if those restrictions were in effect while the case was underway. Likely to add to the confusion, a federal judge in Washington ordered the FDA to maintain access to mifepristone under existing rules in 17 Democratic-led states, and the District of Columbia filed separate lawsuit.
The Biden administration said the rulings conflicted and created an unresolvable situation for the FDA.
And a new legal wrinkle threatens more complexity. GenBioPro, the company that makes the generic version of mifepristone, filed a lawsuit Wednesday to block the FDA from removing its drug from the market, in the event the Supreme Court doesn’t intervene.
The New Orleans-based Round 5 ordered the speeding up of the case’s hearing schedule, with arguments set for May 17.
