The Supreme Court will face its first test in the battle over abortion pills after the Department of Justice (DOJ) on Thursday asked it to pause a ruling set to take effect this weekend that would significantly hamper the availability of mifepristone.
A late Wednesday night federal appeals court ruling on the widely used abortion pill will keep it on the market for now, but it could make it significantly more difficult to access, even in blue states that have fought to expand availability.
Abortion-rights advocates, along with medical and legal experts, said Wednesday night’s ruling from the 5th U.S. Circuit Court of Appeals threatens to throw the availability of mifepristone into chaos if it is allowed to take effect.
The late-night decision temporarily blocked the most contentious part of a decision handed down last week by a judge in Texas that invalidated the Food and Drug Administration’s (FDA) approval of mifepristone.
So the drug will remain available, but severely restricted — unless the Supreme Court stops the circuit court ruling from coming into force.
Two of the three judges on the panel kept in place parts of the decision that essentially turned the clock back to 2016, when the FDA started issuing new guidelines to ease access to the pill.
Those changes included increasing the gestational age when mifepristone can be used up to 10 weeks of pregnancy, allowing the medication to be mailed to patients, allowing providers other than physicians to prescribe the drug, and approving a generic version of mifepristone.
Attorney General Merrick Garland will likely ask the Supreme Court to pause each of those remaining portions, which go into effect early Saturday morning, barring an intervention from the justices.
“The Justice Department strongly disagrees with the Fifth Circuit’s decision in Alliance for Hippocratic Medicine v. FDA to deny in part our request for a stay pending appeal,” Garland said in a statement on Thursday.
“We will be seeking emergency relief from the Supreme Court to defend the FDA’s scientific judgment and protect Americans’ access to safe and effective reproductive care.”
The Supreme Court is not required to consider the case, but legal experts and advocates said the stakes are too high for it to ignore. If the Supreme Court rejects the case, the Fifth Circuit’s decision remains in place.
“All eyes are focused on the Supreme Court,” said Jennifer Dalven, director of the American Civil Liberties Union Reproductive Freedom Project.
“This has dangerous implications both in terms of federal law and state law as well. And so we really need the Supreme Court to step in here and right the ship and impose some sort of judicial accountability.”
In addition, the 5th Circuit’s opinion seems to directly contradict a ruling on Friday from a Washington state judge, who ordered the FDA to leave in place the current mifepristone prescribing and dispensing rules for 17 blue states and D.C. that filed a separate lawsuit.
The Biden administration warned if the decision were allowed to stand, it would put every FDA drug approval decision at risk of being challenged for political purposes.
“If this decision stands, no medication—from chemotherapy drugs, to asthma medicine, to blood pressure pills, to insulin—would be safe from attacks,” Vide President Harris said in a statement.
“This decision threatens the rights of Americans across the country, who can look in their medicine cabinets and find medication prescribed by a doctor because the FDA engaged in a process to determine the efficacy and safety of that medication.”
American Medical Association President Jack Resneck Jr. issued a similar warning.
“Last night’s decision from the Fifth Circuit Court of Appeals is a profoundly dangerous step backwards on access to mifepristone,” he said.
The order “opens a pandora’s box for similar politically motivated, unscientific attacks by judges with no medical or scientific training against the FDA’s scientific, evidence-based approvals of countless other medications,” Resneck said.
If the Supreme Court does consider the case, the compressed timeline means the DOJ could initially ask the justices for an administrative stay, which would pause all prior rulings until the high court can consider the administration’s request.
The Alliance Defending Freedom, the conservative Christian legal organization that represents the anti-abortion groups suing the FDA, told reporters during a briefing Thursday that they see the appeals court’s decision as a “significant victory” and has “no immediate plans” to appeal it.
However, the group is confident it will be able to argue that FDA’s initial approval of mifepristone in 2000 was unlawful, just like District Judge Matthew Kacsmaryk ruled last week.
“We anticipate that we might be able to persuade the Fifth Circuit on a fuller briefing that the 2000 ruling is in play,” the group’s senior counsel Erin Hawley said.
“But for now, we’ve got a great victory in the fact that there are now three required doctor visits to make sure women are safe, and the FDA complies with the rule of law.”
