U.S. Supreme Court preserves access to abortion pill as lawsuit continues

WASHINGTON — The abortion pill will remain available throughout the United States while a lawsuit over its approval and use works through the appeals process, the U.S. Supreme Court said Friday.

The court issued a stay that ensures access to mifepristone nationwide, reversing lower court rulings about when and how the abortion medication should be available in a court case filed by anti-abortion organizations. 

The decision stems from a ruling in the U.S. District Court for the Northern District of Texas, where Judge Matthew Kacsmaryk, in early April, essentially overturned the U.S. Food and Drug Administration’s approval of mifepristone in 2000. Kacsmaryk is a nominee of former President Donald Trump.

The 5th Circuit Court of Appeals in New Orleans then placed a partial hold on the district court ruling, following a request from the U.S. Department of Justice. 

The ruling by that three-judge panel would have kept mifepristone on the market, but required use and administration of mifepristone to revert to the FDA’s pre-2016 instructions. 

Mifepristone, which blocks a hormone called progesterone that is needed for a pregnancy to continue, is one of two drugs used in a medication abortion. Medical abortions make up more than half of abortions in the U.S., according to research by the Guttmacher Institute.

Friday’s ruling by the high court means the abortion pill will remain on the market for now without the limitations placed on it by the appeals court.

“The April 7, 2023 order of the United States District Court for the Northern District of Texas, case No. 2:22–cv–223, is stayed pending disposition of the appeal in the United States Court of Appeals for the Fifth Circuit,” read the opinion, issued just before 7 p.m. Eastern on Friday.

The only noted dissents were from Justices Clarence Thomas and Samuel Alito.  Alito wrote that he would not have granted the stay for the lower court decision, arguing that the 5th Circuit Court of Appeals placed the suit on a “fast track.”

“(T)here is reason to believe that they would get the relief they now seek — from either the Court of Appeals or this Court — in the near future if their arguments on the merits are persuasive,” Alito wrote.

In a statement, President Joe Biden said the stay granted by the Supreme Court prevented a lower court from undermining the “FDA’s medical judgment and put women’s health at risk.”

“I continue to stand by FDA’s evidence-based approval of mifepristone, and my Administration will continue to defend FDA’s independent, expert authority to review, approve, and regulate a wide range of prescription drugs,” he said.

The federal government, the manufacturers of the brand name and generic versions of the drug, and reproductive rights organizations had said that the 5th Circuit ruling was unworkable. 

That 5th Circuit partial stay, which will no longer go into effect, would have meant that mifepristone would no longer have been approved for up to 10 weeks gestation, but seven weeks. 

Patients would have to attend three in-person doctor visits instead of one, all adverse events would have to be reported to the FDA and dosage and administration of the medication would have reverted to pre-2016 instructions. 

It would have prevented doctors from prescribing mifepristone via telehealth or it being sent through the mail. 

The generic version of mifepristone would no longer have been approved. 

Ariana Figueroa contributed to this report.