The supreme court on Wednesday briefly extended an order keeping the abortion drug mifepristone widely available, as the justices weigh a lower court’s decision to impose restrictions that would sharply limit access to the most common method of ending pregnancies.
Justice Samuel Alito issued the order on Wednesday, in effect preserving the status quo until midnight on Friday. Alito provided no explanation for the extension delaying the court’s decision, which was initially expected by Wednesday night.
The brief order was the latest development in a legal showdown initiated by abortion opponents seeking to revoke a 23-year-old Food and Drug Administration (FDA) approval of the pill.
Earlier this month, Matthew Kacsmaryk, a federal judge in Texas, declared that 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 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.
Following the appellate ruling, the justice department sought emergency relief from the supreme court, asking the justices to block a lower court ruling that would have sharply curtailed access to the pill by reversing a series of regulatory actions on mifepristone that the FDA loosened, beginning in 2016.
The pause gives the justices additional time to study arguments and consider the restrictions ordered 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.
If the justices allow the appeals court 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.
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.
Complicating the question, a federal judge in Washington state, 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.
Earlier on Wednesday, GenBioPro, the manufacturer of a generic version of mifepristone, sued the FDA in an effort to keep the drug on the market. In a filing to the supreme court, the FDA wrote that under the appellate ruling, the generic version of the drug, approved for use in 2019, would “cease to be approved altogether”.
The company says it supplies around two-thirds of the pills used for medication abortions in the US.
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 more difficult, 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.
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 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.
Reproductive rights activists say a decision by the supreme court not to block restrictions while the appeals process moves forward would have dangerous and far-reaching consequences for women, including those who live in states where abortion rights are protected.
“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 the 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.”
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