The Supreme Court docket holds mifepristone totally out there

Demonstrators gather in support of abortion rights in front of the US Supreme Court in Washington, DC on April 15, 2023.

Andrew Caballero-Reynolds | AFP | Getty Images

The Supreme Court on Friday ruled that the abortion pill mifepristone should remain widely available while the case is being played out in a lower court.

The Supreme Court’s decision came in response to an emergency request from the Justice Department to block lower court decisions that would severely limit access to the drug even in some states where abortion is legal.

The case is now before the US 5th Circuit Court of Appeals. The appeals court has scheduled hearings for Wednesday, May 17 at 1:00 pm CT.

Mifepristone has become a focal point in abortion litigation since the Supreme Court ruled Roe v. Wade repealed the landmark 1973 ruling that guaranteed abortion as a constitutional right nationwide.

Mifepristone, used in combination with another drug called misoprostol, is the most common method of abortion in the United States, accounting for about half of all abortions.

President Joe Biden said the court’s decision kept mifepristone available to women and the FDA approved early termination of pregnancy. Biden said his administration will fight to protect access to mifepristone in the ongoing 5th Circuit Court litigation.

“I’m sticking with it [the Food and Drug Administration’s] evidence-based approval of mifepristone, and my administration will continue to defend the FDA’s independent expert authority to review, approve and regulate a wide range of prescription drugs,” the President said.

Planned Parenthood President Alexis McGill Johnson said the reproductive health provider was relieved by the Supreme Court’s decision.

But McGill Johnson warned that access to mifepristone remains in jeopardy as the legal battle goes to the Court of Appeal.

“While mifepristone’s approval remains intact and it remains on the market for now, patients and healthcare providers should not be at the mercy of the court system,” said McGill Johnson. “Drug-induced abortions are still under severe threat — as are abortions and access to other forms of sexual and reproductive healthcare.”

Justices Samuel Alito and Clarence Thomas, both Conservatives, defied the court’s majority decision to grant the emergency motion by the DOJ and Danco Laboratories, distributor of the brand-name version of the drug Mifeprex.

The DOJ and Danco told the Supreme Court in their urgent motions that the restrictions imposed by the lower courts would keep mifepristone off the market for months as the FDA adjusted the drug’s labeling to comply with the orders. This would deny women access to an FDA-approved drug that offers a safe alternative to surgical abortions, they argued.

Alito rejected this argument in his dissent. The judiciary said the FDA could simply use its enforcement discretion while the litigation unfolded and allow Danco to continue marketing mifepristone.

The court’s majority decision to maintain the status quo means mifepristone is still available through the mail and women can get the prescription drug without having to go to the doctor in person.

But the drug will be largely unavailable in the dozen states that effectively banned abortion over the past year. Other states also have restrictions that are much stricter than FDA regulations.

The national litigation over mifepristone began with a lawsuit brought by a coalition of anti-abortion physicians, the Alliance for Hippocratic Medicine. These doctors tried to force the FDA to withdraw the drug from the US entirely.

Earlier this month, US District Judge Matthew Kacsmaryk ruled in favor of anti-abortion activists, issuing a sweeping order that would have halted the nationwide sale of mifepristone.

Days later, the US Circuit Court of Appeals for the Fifth Circuit blocked part of Kacsmaryk’s order, allowing 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 mail, imposed doctor visits as a condition of receiving the drug, and reduced the length of time women can take the pill to the seventh week of pregnancy.

The appeals court judges also stayed the approval of the generic version of mifepristone for 2019. The company that sells the generic version, GenBioPro, told the Supreme Court that the majority of the nation’s supply of the drug would “disappear overnight” if the Court of Appeals ruling went into effect.

GenBioPro said it provides two-thirds of the mifepristone used in abortions in the US

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