Supreme Court Ensures, for Now, Broad Access to
Abortion Pill
The order halts a sweeping ruling by a federal judge
in Texas as an appeal moves forward in a case that could have profound
implications for abortion access and the F.D.A.’s regulatory authority.
Published
April 21, 2023
Updated
April 22, 2023, 2:22 a.m. ET
https://www.nytimes.com/live/2023/04/21/us/abortion-pill-supreme-court
WASHINGTON
— The Supreme Court said Friday evening that the abortion pill mifepristone
would remain widely available for now, delaying the potential for an abrupt end
to a drug that is used in more than half of abortions in the United States.
The order
halted steps that had sought to curb the availability of mifepristone as an
appeal moves forward: a ruling from a federal judge in Texas to suspend the
drug from the market entirely and another from an appeals court to impose
significant barriers on the pill, including blocking access by mail.
The
unsigned, one-paragraph order, which came hours before restrictions were set to
take effect, marked the second time in a year that the Supreme Court had
considered a major effort to sharply curtail access to abortion.
The case
could ultimately have profound implications, even for states where abortion is
legal, as well as for the F.D.A.’s regulatory authority over other drugs.
If the
ruling by the judge in Texas, which revoked the F.D.A.’s approval of the pill
after more than two decades, were to stand, it could pave the way for all sorts
of challenges to the agency’s approval of other medications and enable medical
providers anywhere to contest government policy that might affect a patient.
The Biden
administration had asked the Supreme Court to intervene after the U.S. Court of
Appeals for the Fifth Circuit let stand a number of restrictions in the Texas
ruling, even as it said it would allow the pill to remain on the market.
In Friday’s
order, Justices Clarence Thomas and Samuel A. Alito Jr. dissented.
Justice
Thomas gave no reasons, but Justice Alito noted that the Fifth Circuit had
already narrowed the most far-reaching aspects of the Texas ruling. The F.D.A.
and the manufacturer of the branded version of mifepristone, Danco
Laboratories, had “not shown that they are likely to suffer irreparable harm”
as the case proceeds through the appeals court, he added.
Justice
Alito expressed skepticism of the F.D.A.’s claims that “regulatory ‘chaos’”
would ensue if the lower court ruling went into effect. In a nod to a competing
case filed by Democratic state attorneys general in Washington State, which is
seen as a direct challenge to the case in Texas, he accused the F.D.A. of
leveraging the court system to carry out “a desired policy while evading both
necessary agency procedures and judicial review.”
This is
most likely not the final word from the justices. After the Fifth Circuit hears
the appeal, the matter is likely to make its way back to the Supreme Court.
None of the
justices appointed by President Donald J. Trump publicly dissented.
The court’s
decision is, at least temporarily, a victory for the Biden administration.
President
Biden welcomed the decision, saying the “administration will continue to defend
F.D.A.’s independent, expert authority to review, approve and regulate a wide
range of prescription drugs.”
The Texas
ruling, he added, “would have undermined F.D.A.’s medical judgment and put
women’s health at risk.”
A spokesman
for the F.D.A. declined to comment.
The
reaction from the plaintiffs — a coalition of anti-abortion groups and several
doctors — was muted.
Erik
Baptist, senior counsel for Alliance Defending Freedom, a conservative legal
organization that represents the coalition, said the battle would continue.
“The F.D.A.
must answer for the damage it has caused to the health of countless women and
girls and the rule of law by failing to study how dangerous the chemical
abortion drug regimen is and unlawfully removing every meaningful safeguard,
even allowing for mail-order abortions,” Mr. Baptist said.
After the
Supreme Court eliminated a constitutional right to an abortion in June, political
and legal battles shifted to medication abortion, a two-drug regimen that is
typically used in the first 12 weeks of pregnancy.
The first
drug, mifepristone, blocks the reproductive hormone progesterone, and the
second, misoprostol, taken one or two days later, prompts contractions and
helps the uterus expel its contents.
More than
five million women have used mifepristone to terminate their pregnancies in the
United States, and dozens of other countries have approved the drug for use.
The case
reached the justices after a swift-moving and tangled fight over the pill’s
legal status.
In
November, the plaintiffs filed a lawsuit in the Amarillo division of the
federal court system in Texas, guaranteeing that the case would come before a
single judge: Matthew J. Kacsmaryk of the U.S. District Court for the Northern
District of Texas.
Judge
Kacsmaryk, an appointee of Mr. Trump, is a longtime opponent of abortion and
joined the bench after working at First Liberty Institute, a conservative legal
group that focuses on issues of religious liberty.
The
coalition that brought the suit, the Alliance for Hippocratic Medicine, argued
that the F.D.A. had improperly approved the pill in 2000 and that mifepristone
is unsafe. The agency has strongly disputed those claims, pointing to studies
that show that serious complications are rare and that less than 1 percent of
patients need hospitalization.
This month,
Judge Kacsmaryk, in a temporary ruling, declared invalid the F.D.A.’s approval
of the drug and gave both parties a week to seek emergency relief before the
decision took effect.
Less than
an hour later, a federal judge in Washington State, Thomas O. Rice, an
appointee of President Barack Obama, issued a contradictory ruling in a
separate lawsuit over mifepristone. Judge Rice blocked the F.D.A. from limiting
the availability of the pill in 17 states and the District of Columbia, which
were parties in that suit.
The
competing rulings meant that the matter was almost certainly headed to the
Supreme Court.
The F.D.A.
immediately appealed Judge Kacsmaryk’s decision, and a divided three-judge
panel of the Fifth Circuit, in New Orleans, upheld the agency’s approval of the
drug, ensuring that mifepristone would remain on the market.
But the
panel imposed several barriers to access, siding in part with Judge Kacsmaryk,
while the lawsuit moved through the courts. It blocked a series of steps the
F.D.A. had taken since 2016 to increase the availability and distribution of
the drug, such as allowing it to be sent by mail and to be prescribed by
medical providers who are not doctors.
Adam Liptak
and Christina Jewett contributed reporting.
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