Supreme Court will preserve access to the abortion pill, for now

WASHINGTON – The Supreme Court Friday upheld women’s access to a drug used in the most common method of abortion, overturning a lower court’s ban while the trial continues.

The justices approved emergency requests from the Biden administration and New York-based Danko Laboratories, maker of the drug mifepristone. They are appealing against a lower court’s decision that would withdraw the Food and Drug Administration’s approval of mifepristone.

This drug has been approved for use in the US since 2000 and more than 5 million people have used it. Mifepristone is used in combination with another drug, misoprostol, in more than half of abortions in the US.

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The Supreme Court initially said it would decide by Wednesday whether the restrictions could take effect while the case continued. The one-sentence order signed Wednesday by Justice Samuel Alito gave the justices two additional days without explanation.

The challenge to mifepristone, brought by abortion foes, is the first abortion dispute to reach the nation’s highest court since its conservative majority 10 months ago voted against Roe v. Wade was overturned and allowed more than a dozen states to effectively ban abortion.

In his majority opinion, Alito said that one reason to overturn Roe was to remove the federal courts from the abortion fight. “It is time to follow the Constitution and return the issue of abortion to the elected representatives of the people,” he wrote.

But even with their court victory, abortion opponents have returned to federal court with a new target: medication abortions, which account for more than half of all abortions in the United States.

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Women wishing to end their pregnancy in the first 10 weeks without a more invasive surgical abortion can take mifepristone along with misoprostol. The FDA has eased conditions for mifepristone’s use over the years, including allowing it to be shipped through the mail in states that allow access.

Abortion opponents filed a lawsuit in Texas in November, saying the FDA’s original approval of mifepristone 23 years ago and subsequent changes were flawed.

He won an April 7 decision by US District Judge Matthew Kaczmarik, who was appointed by former President Donald Trump, to revoke the FDA approval of mifepristone. The judge gave the Biden administration and the maker of mifepristone, New York-based Danko Laboratories, a week to appeal and seek to uphold his ruling.

Responding to an expedited appeal, two more Trump appointees to the 5th US Circuit Court of Appeals said the FDA’s original approval would remain in place for now. But Judges Andrew Oldham and Kurt Engelhardt said most of the rest of Kaczmarik’s ruling could take effect while the case moves through the federal courts.

Their decision will effectively end changes made by the FDA starting in 2016, including expanding seven to 10 weeks of pregnancy, when mifepristone can be used safely. The court also said that the drug cannot be mailed or dispensed as a generic and patients who want it need to make three personal appointments with a doctor. Women may also need to take higher doses of the drug than is necessary according to the FDA.

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The administration and Danko have said that chaos will result if sanctions are imposed on the case going forward. Potentially adding to the confusion, a federal judge in Washington has ordered the FDA to preserve access to mifepristone under existing rules in 17 Democratic-led states and the District of Columbia, which filed a separate lawsuit.

The Biden administration has said the rules conflict and create an untenable position for the FDA.

And a new legal wrinkle threatens even more complications. GenBioPro, which makes a generic version of mifepristone, filed a lawsuit on Wednesday to prevent the FDA from removing its drug from the market unless the Supreme Court intervenes.

The New Orleans-based 5th Circuit has already ordered an expedited schedule for hearing the case, with closing arguments set for May 17.

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