A group of anti-abortion doctors urged the Supreme Court on Tuesday to keep a lower court’s ruling that severely restricted the ability of patients to obtain mifepristone, one of two commonly-used abortion pills.
The Alliance for Hippocratic Medicine told the justices that they should leave in place last Wednesday’s ruling from the 5th U.S. Circuit Court of Appeals that essentially turned the clock back to 2016, when the Food and Drug Administration 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.
Calling the Fifth Circuit’s order “reasonable,” the group claimed it would still allow women access to mifepristone under the same rules that existed for its first 16 years on the market.
“The only effect of the lower court’s order is to restore a modicum of safety for the women and girls who use the drug, including supervision and oversight by a physician,” lawyers for the group wrote.
The Supreme Court on Friday briefly put the ruling on pause, and said it would decide by midnight Wednesday whether to maintain full access to mifepristone while the case is appealed.
The Justice Department, the pharmaceutical industry and abortion rights advocates have argued in support of FDA, which relied on dozens of clinical trials when it first approved mifepristone in 2000.
Those groups warned if the decision were allowed to stand, it would create “regulatory chaos” and put every FDA drug approval decision at risk of being challenged for political purposes.
“The abrupt shift in the regulatory landscape that would be required by the lower courts’ orders raises a host of unprecedented issues and has put FDA and regulated entities in an impossible position,” Solicitor General Elizabeth Prelogar wrote in the government’s filing.
The Biden administration will need to convince the same Supreme Court that voted 5-4 last summer to overturn the constitutional right to an abortion under Roe v. Wade.
The majority opinion said abortion rights were returning to the states, but the government and Danco Laboratories, which makes the brand name version of mifepristone, said the court would be abandoning that pledge if it rules in favor of the anti-abortion groups.
“If the Court denies a stay, it abandons that assurance. Allowing the Fifth Circuit’s opinion to stand eviscerates the sovereign authority of States that wish to expand and protect access to medication abortion in their jurisdiction,” Danco wrote.
Complicating matters further, a judge in Washington state in a separate lawsuit ordered the FDA to leave in place the current mifepristone prescribing and dispensing rules for 17 blue states and D.C.
Judge Thomas Rice said the FDA was prohibited from “altering the status quo” in those states, “irrespective” of what the Fifth Circuit appeals court said.
On April 7, District Judge Matthew Kacsmaryk suspended FDA’s 23 year-old approval of mifepristone. The appeals court put that part of his ruling on hold, but left in place another part of the ruling that blocked steps FDA has taken since 2016 to ease access to mifepristone.
The Alliance Defending Freedom, the conservative Christian legal organization that represents the anti-abortion groups suing the FDA, told reporters last week that they see the appeals court’s decision as a “significant victory.”
The group said it was confident it will be able to argue that FDA’s initial approval of mifepristone in 2000 was unlawful, just like Kacsmaryk ruled.