Supreme Court Extends Stay on Abortion Pill Rulings

WASHINGTON — The Supreme Court on Wednesday extended its order blocking restrictions on the abortion pill mifepristone until at least Friday, meaning they’ll be available to women who want them at least through the end of the week.

The decision, announced without explanation, comes a week after Justice Samuel Alito Jr. temporarily allowed the abortion pill mifepristone to stay on the market with no new restrictions in response to an emergency motion by the Justice Department and Danco Laboratories, the distributor of the brand-name version of the drug Mifeprex.

His original order was to have expired at 11:59 p.m. Wednesday night.

As previously reported by The Well News, mifepristone was approved by the Food and Drug Administration in 2000 and is used in combination with a second drug, misoprostol, to chemically terminate an unintended pregnancy in what is termed a “medication abortion.”

On April 7, a federal judge in Texas, Matthew Kacsmaryk, tossed out the FDA’s approval claiming the agency had succumbed to political pressure when it approved mifepristone initially, and continued to bow to that pressure as it gradually lifted restrictions to its use over time.

“The court does not second guess FDA’s decision-making lightly,” Kacsmaryk wrote in the ruling. “But here, FDA acquiesced on its legitimate safety concerns — in violation of its statutory duty — based on plainly unsound reasoning and studies that did not support its conclusions.”

Days later, the 5th U.S. Circuit Court of Appeals gave the Food and Drug Administration a partial victory by declining to suspend the agency’s original approval — a move that would have immediately made the distribution of the pill unlawful.

However, the appellate panel upheld some of Kacsmaryk’s decision, including a provision that blocked the mailing or prescribing of the drug without an in-person visit to a doctor.

The 5th Circuit ruling also scaled back the FDA’s approved timeline for using mifepristone. The agency had said the drug is safe to use through 10 weeks; the appeals court demurred, and said the drug shouldn’t be used after the seventh week of pregnancy.

In the government’s filing seeking an emergency hearing before the Supreme Court on Friday, Solicitor General Elizabeth Prelogar argued the court should put Kacsmaryk’s entire decision on hold until all legal questions surrounding it are settled. 

The case was filed by the Alliance Defending Freedom, a conservative legal group, who argued the court should keep restrictions on the medication in place while the legal arguments continued, maintaining that patient safety was at risk if it didn’t.

The legal group represents a group of doctors who oppose abortion called the Alliance for Hippocratic Medicine.

Meanwhile the Justice Department is in a legal bind.

A second federal judge, U.S. District Judge Thomas Rice in Washington state, has barred the Food and Drug Administration from restricting the availability of mifepristone in 17 states.

It has told the court that complying with the 5th Circuit’s decision would put the government in violation of Rice’s order.

Dan can be reached at [email protected] and @DanMcCue