The United States Supreme Court is under self-imposed pressure to decide whether women’s access to mifepristone, a widely used abortion pill, will remain unrestricted or be limited. This legal challenge was brought by abortion opponents and aims to restrict the availability of mifepristone, which has been found to be both safe and effective, and used by over 5 million women since its FDA approval in 2000.
The restrictions that are being considered for approval have been deemed to be severe, with many fearing that they would significantly disrupt the availability of the drug. The Supreme Court initially announced that they would deliver their decision on Wednesday, but with no explanation, the deadline was extended for two more days, up until Friday night. This additional time could be an attempt to reach a consensus amongst the justices, or a result of one or more justices writing a separate opinion.
This challenge marks the first abortion controversy to reach the highest court since the conservative majority overturned Roe v. Wade 10 months ago, allowing over a dozen states to effectively ban abortions altogether. Justice Samuel Alito cited the removal of federal courts from the abortion fight as one of the reasons for the decision.
With the court victory in hand, abortion opponents have returned with a new target: medication abortions, which make up more than half of all abortions in the United States. Mifepristone, which is used in the first 10 weeks of pregnancy, along with misoprostol, is a popular choice for women who opt for medication abortions, as it is less invasive than surgical abortions.
The legal battle began when abortion opponents filed a lawsuit in Texas in November, alleging that the FDA’s original approval of mifepristone 23 years ago and subsequent changes were flawed. They won a ruling on April 7 by U.S. District Judge Matthew Kacsmaryk, an appointee of former President Donald Trump, revoking FDA approval of mifepristone. The judge gave the Biden administration and Danco Laboratories, the makers of mifepristone, a week to appeal and seek to keep his ruling on hold.
After a quick appeal, two more Trump appointees on the 5th U.S. Circuit Court of Appeals ruled that the FDA’s original approval would stand for now, but most of the rest of Kacsmaryk’s ruling could take effect while the case proceeds. This ruling could nullify changes made by the FDA since 2016, including extending the use of mifepristone from seven to ten weeks of pregnancy, allowing the drug to be mailed or dispensed as a generic, and permitting patients to make fewer in-person visits with a doctor.
The Biden administration and Danco have warned that if these restrictions take effect, there will be chaos. A federal judge in Washington has also ordered the FDA to preserve access to mifepristone under the current rules in 17 Democratic-led states and the District of Columbia, which filed a separate lawsuit, adding to the confusion.
Furthermore, GenBioPro, the maker of the generic version of mifepristone, filed a lawsuit to preemptively block the FDA from removing its drug from the market in case the Supreme Court doesn’t intervene.
The administration and Danco have urged the Supreme Court to intervene and block the lower-court rulings while the case proceeds. They are also asking the court to take up the challenge to mifepristone, hear arguments and decide the case by early summer, although the court rarely takes such steps before at least one appeals court has examined the legal issues involved.
The New Orleans-based 5th circuit has already ordered an accelerated schedule for hearing the case, with arguments set for May 17.