Justice Alito Temporarily Blocks Limits on Abortion Pill Access

April 15, 2023

Supreme Court Justice Samuel Alito on Friday temporarily extended a hold on a lower court ruling that would have limited access to the abortion drug mifepristone.

Alito’s order extends the stay until 11:59pm ET on Wednesday. He has also asked plaintiffs to respond by noon ET Tuesday. 

That extends parts of the ruling by U.S. District Court Judge Matthew Kacsmaryk that would restrict access nationwide—even in states where abortion remains legal. The Texas-based judge’s ruling was to go into effect at 1am ET Saturday while a lawsuit that he’s presiding over regarding the pill’s FDA approval proceeds

The Department of Justice and drug manufacturer Danco Laboratories asked the Supreme Court on Friday to intervene and preserve access to the pill without restrictions  while legal battles over its access play out.

In an emergency filing Solicitor General Elizabeth Prelogar, the Biden Administration’s top Supreme Court lawyer, wrote that the issue “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.”

She said that if Kacsmaryk’s ruling were allowed to stand it would “inflict grave harm on women, the medical system, the agency, and the public.”

Jessica L. Ellsworth, the attorney for Danco Labs, wrote in the mifepristone manufacturer’s filing that leaving the lower court opinion in play would “irreparably harm Danco, which will be unable to both conduct its business nationwide and comply with its legal obligations…nationwide.”

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.

Alito issued the order Friday because he has jurisdiction over the federal appeals court involved in the case—the Texas-based 5th Circuit Court.

Approved by the Food and Drug Administration 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.

Adding complexity to the issue surrounding the abortion pill is a ruling that competes with Kascmarek’s, issued just 30 minutes after the Texas judge issued his nationwide injunction. 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.

Rice’s ruling impacts only DC and those states that brought the suit, unlike Kascmarek’s sweeping ruling. Rice called the Texas judge’s nationwide injunction “inappropriate.”

He was echoed by some 400 pharmaceutical company executives who said Kacsmaryk’s ruling 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.”

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