Demonstrators rally in support of abortion rights on the US Supreme Court in Washington, DC, April 15, 2023.
Andrew Caballero-Reynolds | AFP | Getty Images
Supreme Court Justice Samuel Alito on Wednesday issued an order allowing the abortion pill mifepristone to stay available by mail delivery and without tighter restrictions on the way it is used until no less than late Friday night.
Alito last week had temporarily blocked the restrictions on mifepristone imposed by lower federal courts until 11:59 p.m. Wednesday in response to an emergency motion by the Justice Department and Danco Laboratories, the distributor of the brand name version of the drug Mifeprex.
Those restrictions now will remain on hold until 11:59 p.m. Friday because of this of his recent order.
Alito didn’t explain the explanation for the delay.
But it surely gives him and the remaining of the Supreme Court two days more to think about whether to take care of the hold on the lower court rulings, or to permit restrictions on mifepristone to take effect as a sophisticated legal battle over the drug plays out.
Two separate federal courts have given the Food and Drug Administration conflicting rulings on the provision of the medication.
U.S. Judge Matthew Kacsmaryk of the Northern District of Texas earlier this month suspended the FDA approval of mifepristone and all subsequent decisions the agency had taken to control the medication.
The U.S. Fifth Circuit Court of Appeals partially blocked Kacsmaryk’s sweeping order days later and kept the FDA approval in effect, but imposed severe limits on how mifepristone is used and distributed. Although that ruling keeps mifepristone in the marketplace, the restrictions are so sweeping that many ladies wouldn’t have access to the medication even in some states where abortion is legal.
Shortly after Kacsmaryk’s ruling, U.S. Judge Thomas Rice of the Eastern District of Washington state barred the FDA from restricting the provision of mifepristone in 17 states and Washington D.C.
Mifepristone, used together with one other drug called misoprostol, is essentially the most common method to terminate a pregnancy within the U.S., accounting for about half of all abortions, in response to the Centers for Disease Control and Prevention and the Guttmacher Institute.
Kacsmaryk’s unprecedented ruling was the primary time a federal court invalidated an FDA determination that a drug is protected and effective, in response to court filings from the Justice Department, former FDA officials and the pharmaceutical industry.
Former President Donald Trump appointed Kacsmaryk. Senate Democrats unanimously opposed his nomination over concerns about his position on abortion and LGBTQ rights.
The appeals court restrictions included blocking mail delivery of the medication, re-imposing doctor visits as a requirement to acquire the drug, and shortening the length of time women can use the pill to the seventh week of pregnancy. The court also blocked the generic version of mifepristone made by a second company, GenBioPro, which supplies about two-thirds of the medication for the U.S. market.
The fifth Circuit decision by Judges Kurt Engelhardt and Andrew Oldham, who were also appointed by Trump, essentially rolled back all of the actions the FDA had taken to make mifepristone easier for girls to access.
The Justice Department told the Supreme Court that complying with the fifth Circuit decision would put the federal government in violation of Rice’s order preserving access in 18 jurisdictions.
The Alliance Defending Freedom, the anti-abortion group that filed the lawsuit against the FDA’s approval of mifepristone, asked the Supreme Court keep the restrictions on the medication in place. It argued that the boundaries provide vital protections that keep patients protected. The legal organization represents a gaggle of doctors who oppose abortion called the Alliance for Hippocratic Medicine.
The Alliance Defending Freedom says it helped draft the Mississippi law that ultimately led the Supreme Court last summer to overturn Roe v. Wade, the landmark 1973 decision that guaranteed abortion as a constitutional right nationwide. The group says it is devoted “to protecting religious freedom, free speech, the sanctity of life, parental rights, and God’s design for marriage and family.”
The Justice Department and Danco said the lower court rulings would principally take mifepristone off the marketplace for months because the FDA adjusts the medication’s labelling to comply with the appeals court order. This could deny many ladies access to an FDA-approved drug that could be a protected and effective alternative to surgical abortions, they argued.
The anti-abortion groups have claimed that the way through which the FDA approved mifepristone was illegal, and argued that the drug shouldn’t be protected. Those claims are strongly disputed by former FDA officials, leading medical associations, the pharmaceutical industry, 23 U.S. states and a whole lot of members of Congress.
They are saying the FDA conducted a rigorous review that determined mifepristone is protected and effective, which has been confirmed by a long time of subsequent data.
A bunch of drugmakers that included Pfizer, biotech executives and investors told the Supreme Court that allowing the lower court rulings to face would “shatter the FDA’s gold standard of scientific safety and efficacy review.” Former FDA officials told the high court that the rulings would effectively create open season on the agency, allowing competing drug firms or anyone who claims to have had a side effect from a medicine to sue to take treatments off the market.