Supreme Court says abortion pill mifepristone will remain broadly available during legal battle

The Supreme Court on Friday ordered the abortion pill mifepristone to remain widely available while the legal dispute plays out in a lower court.

The Supreme Court ruling came in response to an urgent request by the Justice Department to block lower court rulings that would severely limit access to the drug even in some states where abortion remains legal.

The case will now be heard in the 5th US Circuit Court of Appeals. The appeals court has scheduled oral arguments for Wednesday, May 17 at 1:00 pm CT.

Mifepristone has become a flashpoint in the legal battle over abortion since the Supreme Court last summer overturned Roe v. Wade, the landmark 1973 decision that guaranteed abortion nationwide as a constitutional right.

Mifepristone, used in combination with another drug called misoprostol, is the most common method of terminating a pregnancy in the US, accounting for about half of all abortions.

President Joe Biden said the court’s ruling keeps mifepristone available to women and approved by the FDA to terminate early pregnancies. Biden said his administration will fight to protect access to mifepristone in the ongoing legal battle in the 5th Circuit Court of Appeals.

“I continue to stand on the sidelines [the Food and Drug Administration’s] evidence-based approval of mifepristone, and my administration will continue to protect the FDA’s independent, expert authority to review, approve, and regulate a wide range of prescription drugs,” the president said.

Planned Parenthood President Alexis McGill Johnson said the reproductive health care provider was relieved by the Supreme Court’s decision.

But McGill Johnson warned that access to mifepristone remains at risk as the legal battle plays out in the appeals court.

“As long as mifepristone’s approval remains intact and it remains on the market for now, patients and healthcare providers should not be left at the mercy of the judicial system,” McGill Johnson said. “Medicated abortion is still very much at risk – as is abortion and access to other sexual and reproductive health care.”

Justices Samuel Alito and Clarence Thomas, both conservatives, dissented from the majority of the court’s decision to grant the emergency request from the DOJ and Danco Laboratories, the distributor of the brand-name version of the drug Mifeprex.

The DOJ and Danco, in their emergency motions, told the Supreme Court that the restrictions imposed by lower courts would effectively take mifepristone off the market for months as the FDA adjusts the drug’s labeling to comply with the orders. That would deny women access to an FDA-approved drug that is a safe alternative to surgical abortions, they argue.

Alito rejected that argument in his dissent. The court said the FDA could simply exercise its enforcement discretion while the litigation played out and allow Danco to continue distributing mifepristone.

The court’s majority decision to maintain the status quo means that mifepristone remains available by mail and women can get the drug with a prescription without having to visit a doctor in person.

However, in the dozen or so states that have effectively banned abortions in the past year, the drug will remain largely unavailable. Other states also have restrictions in place that are much stricter than FDA regulations.

The national legal battle over mifepristone began with a lawsuit filed by a coalition of doctors who oppose abortion, the Alliance for Hippocratic Medicine. These doctors tried to force the FDA to withdraw the drug entirely from the US.

Earlier this month, U.S. District Judge Matthew Kaczmarik ruled in favor of anti-abortion doctors and issued a strict injunction that would have halted sales of mifepristone nationwide.

Days later, the US Fifth Circuit Court of Appeals blocked part of Kacsmaryk’s order and allowed Mifeprex to remain on the market. But appeals court judges imposed restrictions on the drugs that would severely limit access.

The appeals court blocked mail order delivery of the drug, made doctor’s visits a condition of obtaining the drug and reduced the length of time women could take the pill until the seventh week of pregnancy.

Appeals court judges also halted the 2019 approval of the generic version of mifepristone. The company that sells the generic version, GenBioPro, told the Supreme Court that most of the country’s supply of the drug would “disappear overnight” if the appeals court ruling goes into effect.

GenBioPro said it supplies two-thirds of the mifepristone used in abortions in the US