The Supreme Court on Friday granted the government’s request for a stay in a case concerning access to mifepristone. The ruling means the status quo will hold—for now—with regard to prescribing the abortion-inducing drug, as the U.S. Court of Appeals for the 5th Circuit considers the merits of the case.
Justices Clarence Thomas and Samuel Alito dissented from the majority.
The Court’s ruling follows an April 7 decision from U.S. District Judge Matthew Kacsmaryk saying that the Food and Drug Administration (FDA) was wrong to approve the abortion-inducing drug mifepristone in 2000. Kacsmaryk’s order—which he gave seven days to take effect—stayed the FDA’s approval of mifepristone and several subsequent actions related to that approval, including FDA orders from 2016, 2019, and 2021 that loosened restrictions on prescribing the drug.
The Department of Justice and mifepristone manufacturer Danco Laboratories quickly appealed Kacsmaryk’s decision, also asking the U.S. Court of Appeals for the 5th Circuit to stay Kacsmaryk’s order as the appeals process plays out.
The 5th Circuit granted that appeal in part, suspending for now Kacsmaryk’s ruling against the initial FDA approval of mifepristone. However, it allowed parts of the ruling related to subsequent FDA actions—such as its extension of the time in which mifepristone and companion drug misoprostol could be prescribed from seven to nine weeks of pregnancy and its removal of a requirement that doctors must dispense the drug to patients in person—to go forward.
Despite the limited nature of the appeals court’s order, it was still met with outrage by abortion access advocates. The ruling “blatantly ignores both the law and the science just like the lower court did,” commented Jennifer Dalven, director of the American Civil Liberties Union’s Reproductive Freedom Project. “It ignores both the scientific experts at the FDA and over 100 studies on the safety and efficacy of mifepristone in favor of a few anecdotes provided from anti-abortion extremists.”
The DOJ and Danco quickly appealed to the U.S. Supreme Court.
SCOTUS temporarily stayed the 5th Circuit’s decision and requested more information.
“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,” the DOJ argued in its appeal.
The DOJ asked the Supreme Court to “stay the district court’s opinion in full and maintain the long-settled status quo pending the completion of orderly appellate review” or, barring that, “to grant an administrative stay” and then “set this case for expedited briefing and argument on a schedule that would allow it to be argued and decided before the Court’s summer recess.”
The plaintiffs in this case, represented by the Alliance Defending Freedom, argued that the Court should deny the government’s motion. They also requested that if the Court did decide to do an expedited review of the case on its merits, it expand the questions presented to include, among other things, whether the Comstock Act’s ban on mailing articles “intended for producing abortion” included mifepristone.
Last Friday, Justice Samuel Alito administratively stayed the district’s court order through Wednesday, April 19, a stay that on Wednesday it extended through today.
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