Mifepristone, a leading abortion drug, will stay legal for now, the Supreme Court ruled Friday, as an appeal moves forward on the case that could have wide-reaching implications for reproductive rights and the power of the Food and Drug Administration. The court halted a decision by a conservative Donald Trump–appointed judge in Texas banning the drug as the appeal works its way through the United States Fifth Circuit Court of Appeals. This is a temporary victory for the Biden administration in its fight to protect abortion access in a post-Roe America. Mifepristone, alongside misoprostol, is used in more than half of all abortions performed in the US.
The Supreme Court decision is the latest twist in what has been a closely watched legal clash between the Biden Justice Department and a conservative legal group, the Alliance Defending Freedom, which sued the FDA over its 2000 approval of mifepristone. The mifepristone case is one of the most far-reaching antiabortion efforts to reach the Supreme Court since the justices overturned Roe v. Wade last June.
The lawsuit started in Texas, where earlier this month a conservative Trump-appointed judge Matthew Kacsmaryk issued a ruling in the case that would have revoked the FDA approval of the drug—despite the fact that it had been on the market for more than two decades. Attorney General Merrick Garland filed an appeal with the US Fifth Circuit Court of Appeals within hours. A conservative three-judge panel of the appeals court maintained the FDA’s 2000 approval of mifepristone—arguing that too much time had passed for the plaintiffs challenge. But it did side with Kacsmaryk’s decision to undo the FDA’s more recent changes that began in 2016—which broadened access to mifepristone, allowing it to be delivered to patients by mail, and extended the use of the drug up to 10 weeks of pregnancy.
After the Fifth Circuit Court decision, the Justice Department filed an emergency application with the Supreme Court to maintain mifepristone’s FDA approvals. Last Friday, Justice Samuel Alito issued an order that halted the restrictions the US Fifth Circuit Court of Appeals placed on the drug. While that mifepristone will still remain on shelves for now is a victory for access, reproductive rights activists stress that this lawsuit still could have far-reaching consequences.
“We are in the middle of an abortion-access crisis…. There is a lot of pressure put on states that are abortion-access states to care for the patients who no longer have the ability to access that care within their own state. So you add this on top of that, you are perpetuating and exacerbating an already fragile public health system—it’s dangerous,” a reproductive rights advocate said of this latest antiabortion push.
This person added, “This is another attack on abortion in this country, and it is a politically motivated one, not based in science or in the law.”
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Abigail Tracy