Supreme Court lifts abortion pill restrictions for now

Abortion rights advocates rally outside the US Supreme Court on April 14, 2023, in Washington, DC, speaking out against abortion pill restrictions.
Olivier Douliery | AFP | Getty Images
U.S. Supreme Court Justice Samuel Alito on Friday temporarily blocked lower court rulings that imposed restrictions on the abortion pill mifepristone.

U.S. Judge Matthew Kacsmaryk of the U.S. Northern District of Texas suspended the Food and Drug Administration’s approval of mifepristone last week.

The U.S. 5th Circuit Court of Appeals blocked that part of Kacsmaryk’s order and kept the FDA approval in place. But the appeals court temporarily re-imposed restrictions on how mifepristone is used and distributed, which will make it more difficult for women to access the drug.

Alito blocked those rulings restricting mifepristone access until 11:59 p.m. Wednesday.

The ultimate outcome of the national legal battle over mifepristone could sharply limit access to the medication, even in states where abortion remains legal. Mifepristone, used in combination with another drug called misoprostol, is the most common method to terminate a pregnancy in the U.S., accounting for about half of all abortions.

U.S. Solicitor General Elizabeth Prelogar said the litigation against the FDA “has been troubling at every level.” She said the lower court rulings are the first time judges have repealed the conditions of an FDA drug approval based on a disagreement over the agency’s judgement about safety. 

“If allowed to take effect, the lower courts’ orders would upend the regulatory regime for mifepristone, with sweeping consequences for the pharmaceutical industry, women who need access to the drug, and FDA’s ability to implement its statutory authority,” Prelogar said.

Judges Kurt Engelhardt and Andrew Oldham of the 5th Circuit, who were appointed by former President Donald Trump, effectively rolled back every regulatory action the FDA has taken on mifepristone over the past 20 years.

The appeals court judges blocked mail delivery of mifepristone, re-imposed doctor visits as a condition of receiving the drug, and shortened the timeframe when women can take it to the seventh week of pregnancy. They also blocked the 2019 approval of the generic form of mifepristone made by GenBioPro.

The Justice Department said the lower court rulings would make all doses of mifepristone on the market misbranded because their labelling wouldn’t be consistent with the 2000 FDA approval. The government said it would take months to readjust the labelling, which would deny women access to drug that the FDA approved as a safe and effective alternative to surgical abortion.

Danco Laboratories, the distributor of the abortion pill, said it will not be able to market mifepristone until the FDA takes a series of actions to implement the lower court rulings.

“The direct consequence of the Fifth Circuit’s ruling is that FDA must effectuate a series of extensive approvals to implement the Fifth Circuit’s rollback. Without those approvals, Danco cannot legally market and distribute mifepristone,” wrote Jessica Ellsworth, the company’s attorney.

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