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US supreme court poised to rule on abortion pill restrictions US supreme court poised to rule on abortion pill restrictions
(about 4 hours later)
Justices expected to issue an order on Wednesday in case from anti-abortioners seeking to roll back approval of mifepristone Justices expected to issue an order on Wednesday in case from anti-abortion group seeking to roll back approval of mifepristone
The US supreme court is deciding whether women will face restrictions in getting a drug used in the most common method of abortion, while a lawsuit continues. The future of abortion access was once again before the US supreme court on Wednesday, as the justices weighed whether to sharply restrict access to the most common method of ending pregnancies while a lawsuit over the drug proceeds.
The justices are expected to issue an order on Wednesday in a fast-moving case from Texas in which abortion opponents are seeking to roll back Food and Drug Administration (FDA) approval of the drug, mifepristone. An order was expected less than a year after the supreme court overturned the constitutional right to abortion, returning the matter the states. It was the latest development in a legal battle initiated by campaigners seeking to revoke a 23-year-old Food and Drug Administration approval of the pill, mifepristone.
The drug won FDA approval in 2000 and conditions on its use have been loosened in recent years, including making it available by mail in states that allow access. Earlier this month, Matthew Kacsmaryk, a federal judge in Texas, declared the FDA improperly approved the drug in 2000, effectively saying it should be pulled from the market even where abortion remains legal.
The Biden administration and New York-based Danco Laboratories, the maker of the drug, want the highest court to reject limits on mifepristone use imposed by lower courts, at least as long as the legal case makes it way through the courts. The Biden administration appealed to a federal court, where a divided three-judge panel said mifepristone could remain available but imposed several barriers to how the drug is accessed and administered.
They say women who want the drug and providers who dispense it will face chaos if limits on the drug take effect. Depending on what the justices decide, that could include requiring women to take a higher dosage of the drug than the FDA says is necessary. Following the appellate ruling, the justice department sought emergency relief from the supreme court, asking the justices to remove the additional barriers while the appeals process proceeds.
Alliance Defending Freedom, representing anti-abortion doctors and medical groups in a challenge to the drug, is defending the rulings in calling on the supreme court to let the restrictions take effect now. On Friday, justice Samuel Alito issued a temporary stay, in effect restoring the status quo. The stay was set to expire on Wednesday at midnight.
The legal fight comes less than a year after conservative justices allowed more than a dozen states to effectively ban abortion outright. Abortion opponents then set their sights on medication abortions, which make up more than half of all abortions in the US. The five-day pause gave the justices additional time to study arguments and consider the restrictions imposed by the lower court, which include limiting mifepristone use after seven weeks of pregnancy – it is currently approved through 10 weeks – and banning delivery by mail.
The abortion opponents filed suit in November in Amarillo, Texas. The legal challenge quickly reached the supreme court after a federal judge issued a ruling on 7 April that would revoke FDA approval of mifepristone, one of two drugs used in medication abortions. If the justices allow the appeal ruling to stand, the Biden administration has argued, it would dramatically limit the accessibility of mifepristone for both women seeking it and providers dispensing it, causing chaos.
Less than a week later, a federal appeals court modified the ruling so mifepristone would remain available while the case continues, with limits. The appeals court said the drug cannot be mailed or dispensed as a generic and that patients who seek it need to make three in-person visits with a doctor, among other things. The Alliance Defending Freedom, representing a coalition of anti-abortion doctors and medical groups which brought the case, has urged the court to let the restrictions take effect immediately.
The generic version of mifepristone makes up two-thirds of the supply in the US, its manufacturer, Las Vegas-based GenBioPro, wrote in a court filing that underscored the perils of allowing the restrictions to be put into effect. Complicating the question, a federal judge in Washington, Thomas Rice, issued a contradictory ruling in a separate lawsuit brought by Democratic attorneys general in 17 states and the District of Columbia. The order, which Rice reaffirmed after the appeals ruling in the Texas case, blocked the FDA from limiting the availability of mifepristone in those states.
The court also said the drug should only be approved through seven weeks of pregnancy for now, even though the FDA since 2016 has endorsed its use through 10 weeks. Legal scholars say the dueling rulings make it more likely the supreme court will take up the case.
A federal judge in Washington has ordered the FDA to preserve access to mifepristone under the current rules in 17 Democratic-led states and the District of Columbia that filed a separate lawsuit. Since the fall of Roe v Wade, which safeguarded the right to abortion, more than a dozen states have banned or severely restricted abortion. But several states have moved to protect abortion rights, frustrating those who have pushed for a national ban.
As access to abortion becomes increasingly harder, attention has turned to medication abortion. Mifepristone is the first pill in a two-drug regimen to terminate pregnancies, a method that now accounts for more than half of the abortions in the US, surpassing surgical procedures.
Decades of research have concluded that mifepristone and misoprostol, the abortion pills widely used in the US, are safe and effective.
Voters are broadly unsupportive of efforts to restrict access to abortion pills, according to a Reuters/Ipsos poll conducted after the Texas court ruling. Just 28% of Americans – and only 38% of Republicans – support such attempts, it found. A Pew Research Center survey found that, by a margin of two to one, Americans believe abortion medication should be legal.
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The Biden administration has said the rulings conflict and create an untenable situation for the FDA. The abortion opponents brought their case in Amarillo, Texas, a division with only one federal district judge: Kacsmaryk, who previously worked for First Liberty Institute, a conservative Christian legal activist group.
In an order issued last Friday by Justice Samuel Alito, the supreme court put the restrictions on hold through Wednesday to give the court time to consider the emergency appeal. In his ruling, Kacsmaryk adopted the rhetoric of anti-abortion activists, referring to medication abortion as “chemical abortion” and to the fetus as an “unborn human”. Experts and researchers say his decision, which cited blogposts and included cherrypicked data, relied on flawed science.
If the justices are not inclined to block the ruling from taking effect for now, the Democratic administration and Danco have a fallback argument, asking the court to take up the challenge to mifepristone, hear arguments and decide the case by early summer. If the supreme court is not inclined to block the ruling for now, the Biden administration and Danco, the maker of mifepristone, have a fallback argument, asking the court to take up the challenge and decide the case by early summer. The court rarely takes such a step before at least one appeals court has examined the issues involved.
The court only rarely takes such a step before at least one appeals court has thoroughly examined the legal issues involved.
The fifth US circuit court of appeals in New Orleans has ordered an accelerated schedule for hearing the case, with arguments set for 17 May.The fifth US circuit court of appeals in New Orleans has ordered an accelerated schedule for hearing the case, with arguments set for 17 May.
Mifepristone has been available for use in medication abortions in the US since the FDA granted approval in 2000. Since then, more than 5 million women have used it, along with another drug, misoprostol, to induce abortions. Reproductive rights activists say any action taken by the supreme court will have far-reaching consequences for women.
“From a patient and a provider perspective, there are really only two outcomes of what’s before the court,” Carrie Flaxman, senior director for public policy litigation and law with Planned Parenthood Federation of America, told reporters on Tuesday.
“People will still be able to access the evidence-based high-quality abortion care or that care will be jeopardized.”
She added: “If the supreme court doesn’t step in and block the decisions below, the majority of the mifepristone supply could disappear.”
Associated Press contributed reporting
Associated Press contributed reporting