The White House and the drug manufacturer Danco Laboratories asked the Supreme Court on Friday to preserve access to the abortion pill mifepristone while legal battles play out without restrictions imposed by lower court rulings.
The Department of Justice filed an emergency application with the Supreme Court after the 5th Circuit U.S. Court of Appeals on Thursday approved access to mifepristone, but with a new time limits on its use of up to the first seven weeks of pregnancy, versus the FDA’s approval of up to 10 weeks.
That ruling—which also blocked mifepristone from being sent through the mail—came in response to an appeal by the Department of Justice to a ruling by U.S. District Judge Matthew Kacsmaryk in Amarillo, Texas that halted the FDA’s approval of mifepristone on Friday. His ruling would also sales of the abortion pill—even in states where abortion remains legal—while a lawsuit regarding the drug brought by anti-abortion groups proceeds.
“This application concerns unprecedented lower court orders countermanding FDA’s scientific judgment and unleashing regulatory chaos by suspending the existing FDA-approved conditions of use for mifepristone,” Solicitor General Elizabeth Prelogar, the Biden Administration’s top Supreme Court lawyer, wrote in the emergency application.
Approved by the FDA 23 years ago, mifepristone can be used along with another medication, misoprostol, to end a pregnancy. Currently about half of all abortions in the U.S. are medication abortion.
The Supreme Court is being asked to rule on the fate of mifepristone less than a year after its conservative supermajority ruled 6-3 to overturn Roe v Wade and 50 years of the Constitutional right to abortion.
It’s uncertain whether a dueling ruling handed down the same day as Kascmarek’s will play into the Supreme Court’s decision-making. Last Friday, U.S. District Court Judge Thomas Rice in Washington state blocked the FDA from from making any changes to access to mifepristone.
Rice handed down his ruling while presiding over a lawsuit brought by 17 states and the District of Columbia. Unlike Kacsmaryk’s nationwide injunction, Rice’s ruling only impacts DC and those states that filed their lawsuit.
Rice called the Texas judge’s nationwide injunction “inappropriate.”
He was echoed by some 400 pharmaceutical company executives who said Kacsmaryk’s ruling on the abortion pill ignored both scientific and legal precedent.
A statement signed by the execs said, “If courts can overturn drug approvals without regard for science or evidence, or for the complexity required to fully vet the safety and efficacy of new drugs, any medicine is at risk for the same outcome as mifepristone.”
