The Supreme Court on Friday preserved access to a drug used in the most common method of abortion, rejecting lower-court restrictions while a lawsuit continues and giving providers and patients who need the medication a reprieve.
In an unsigned order, the justices blocked rulings by a Texas judge and the 5th Circuit Court of Appeals that could have sharply restricted use of the pills or taken them off the market entirely.
The vote was 7-2, with Justices Clarence Thomas and Samuel A. Alito Jr. dissenting.
The justices granted emergency requests from the Biden administration and New York-based Danco Laboratories, maker of the drug mifepristone. The court’s action Friday almost certainly will leave access to mifepristone unchanged at least into next year, as appeals play out, including a potential appeal to the high court.
The decision sends the case back to lower courts with a signal that most of the justices believe this challenge to the abortion pill will fail in the end.
The challenge to mifepristone, brought by abortion foes, is the first abortion controversy to reach the nation’s highest court since its conservative majority overturned Roe v. Wade 10 months ago and allowed more than a dozen states to effectively ban abortion outright.
WHAT IS MIFEPRISTONE?
Mifepristone was approved for use by the Food and Drug Administration more than two decades ago. It has been used by more than 5 million women to safely end their pregnancies, and today more than half of women who end a pregnancy rely on the drug, the Justice Department said.
Over the years, the FDA has loosened restrictions on the drug’s use, extending from seven to 10 weeks of pregnancy when it can be used, reducing the dosage needed to safely end a pregnancy, eliminating the requirement to visit a doctor in person to get it and allowing pills to be obtained by mail. The FDA also approved a generic version of mifepristone that its manufacturer, Las Vegas-based GenBioPro, says makes up two-thirds of the domestic market.
Mifepristone is one of two pills used in medication abortions, along with misoprostol. Health care providers have said they could switch to misoprostol only if mifepristone is no longer available or is too hard to obtain. Misoprostol is somewhat less effective in ending pregnancies.
HOW DID THE CASE GET STARTED?
A lawsuit over mifepristone was filed in Amarillo, Texas, late last year. Alliance Defending Freedom, a conservative Christian legal group, represents the pill’s opponents, who say the FDA’s approval of mifepristone was flawed.
Why Amarillo? U.S. District Judge Matthew Kacsmaryk, who was nominated by then-President Donald Trump, is the sole district court judge there, ensuring that all cases filed in the west Texas city land in front of him. Since taking the bench, he has ruled against President Joe Biden’s administration on several other issues, including immigration and LGBTQ protections.
On April 7, Kacsmaryk issued a ruling that would revoke the FDA’s approval of mifepristone, but he put the decision on hold for a week to allow an appeal.
Complicating matters, however, on the same day Kacsmaryk issued his order, a court in Washington state issued a separate ruling in a lawsuit brought by liberal states seeking to preserve access to mifepristone. The Washington judge, Spokane-based Thomas O. Rice, whom then-President Barack Obama nominated, ordered the FDA not to do anything that might affect the availability of mifepristone in the suing states. The Biden administration has said it is impossible to follow both judges’ directives at the same time.
HOW DID THE CASE GET TO THE SUPREME COURT?
The Biden administration responded to Kacsmaryk’s ruling by asking the New Orleans-based 5th U.S. Circuit Court of Appeals to prevent it from taking effect for now.
Last week, the appeals court narrowed Kacsmaryk’s ruling so that the initial approval of mifepristone in 2000 is not affected, for now. But it agreed with him that changes the FDA made to relax the rules for prescribing and dispensing the drug should be put on hold. Those rules included expanding when the drug could be taken and allowing for the drug’s delivery through the mail.
The appeals court acted by a 2-1 vote. The judges in the majority, Kurt Engelhardt and Andrew Oldham, are both Trump picks.
The Biden administration has said the rulings conflict and create an untenable situation for the FDA. The Biden administration and Danco Laboratories appealed to the Supreme Court, saying that allowing the appeals court’s restrictions to take effect would cause chaos.
