Anti-abortion demonstrators rejoice outside the USA Supreme Court because the court rules within the Dobbs v Women’s Health Organization abortion case, overturning the landmark Roe v Wade abortion decision in Washington, U.S., June 24, 2022.Â
Evelyn Hockstein | Reuters
An anti-abortion group on Tuesday asked the Supreme Court to maintain restrictions on the abortion pill mifepristone in place while the battle over the medication’s legal status plays out.
Supreme Court Justice Samuel Alito on Friday temporarily blocked those restrictions until 11:59 p.m. ET on Wednesday in response to an emergency request from the Justice Department and Danco Laboratories, the corporate that distributes mifepristone.
The Justice Department and Danco also asked the Supreme Court to review the case on an expedited schedule and make a judgement before its summer recess. The high court, which has a 6-3 conservative majority, could determine at any time how one can proceed with the case.
The group, the Alliance Defending Freedom, asked the Supreme Court, should the justices determine to take the case, to look into whether an 1873 law called the Comstock Act bans mail delivery of mifepristone. The anti-abortion organization also said the court should consider whether the FDA properly approved mifepristone in 2000 if it takes the case.
Mifepristone, used together with a drug called misoprostol, is essentially the most common method to terminate a pregnancy within the U.S., accounting for about half of all abortions. If the lower court rulings against mifepristone ultimately stand, access to abortion could face restrictions even in some states where the procedure stays legal.
Attorneys with the Alliance Defending Freedom accused the FDA of illegally rolling back restrictions on mifepristone through the years. The organization represents a coalition of doctors who oppose abortion called the Alliance for Hippocratic Medicine.
Former FDA officials, the pharmaceutical industry, 23 U.S. states, tons of of members of Congress and leading medical associations all strongly dispute those claims. They are saying the FDA determined mifepristone was secure and effective based on a rigorous scientific review, and its decision regulating the medication falls well inside its authority granted by Congress.
The previous FDA officials and a coalition of drug firms that include Pfizer, in a separate briefs to the Supreme Court, warned that the lower court rulings restricting mifepristone would deliver a severe blow to the FDA’s regulatory powers and chill research, development and investment in latest medications.
Federal Judge Matthew Kacsmaryk of the U.S. Northern District of Texas earlier this month suspended the FDA’s approval of mifepristone and each subsequent motion the agency had taken to ease access to the medication.
The U.S. fifth Circuit Court of Appeals blocked a part of Kacsmaryk’s order and kept the FDA approval in place, but reimposed restrictions on how mifepristone is used and distributed.
The appeals blocked mail delivery of mifepristone, required patients to go to a physician to acquire the medication, and shortened the timeframe when women can take the drug to the seventh week of pregnancy. Additionally they blocked the 2019 approval of the generic version of mifepristone distributed by one other company called GenBioPro.
Alito hit pause on those lower court decisions and has allowed mifepristone to stay more broadly available for now.
“Women will still have access to chemical abortion drugs under the identical restrictions that existed for the primary 16 years of mifepristone’s use,” argued the Alliance Defending Freedom’s attorneys, led by Erik Baptist. “The one effect of the lower court’s order is to revive a modicum of safety for the ladies and girls who use the drug, including supervision and oversight by a physician.”
However the Justice Department and Danco, of their emergency requests to the Supreme Court, said the lower court rulings would effectively take mifepristone off the marketplace for months because the FDA adjusts the medication’s labeling to comply with the fifth Circuit’s decision.
U.S. Solicitor General Elizabeth Prelogar said the litigation and lower court rulings have been “troubling at every level” and would have sweeping consequences for the pharmaceutical industry, women’s health and the FDA’s drug approval powers.
The federal government also argued that complying with the appeals court ruling would effectively be in violation of a competing court order by Judge Thomas Rice of the U.S. Eastern District of Washington. Rice has barred the FDA from restricting the supply of mifepristone in 17 states and Washington, D.C.
