Supreme Court maintains full access to abortion pill mifepristone until at least Friday

Supreme Court Justice Samuel Alito issued an order on Wednesday allowing the abortion drug mifepristone, to be available via mail and without tighter limitations on its use until at least Friday night.

Alito temporarily blocked last week the restrictions imposed on mifepristone by lower federal court until 11:59 p.m., Wednesday. This was in response to a motion made by Danco Laboratories and the Justice Department. Danco Laboratories is the distributor of Mifeprex brand-name version.

As a result, these restrictions will now be on hold until Friday at 11:59 pm.

Alito didn’t explain why the delay occurred.


It gives him and other members of the Supreme Court another two days to decide whether to keep the ban on lower court rulings or allow restrictions on mifepristone as the legal battle for the drug continues.

The Food and Drug Administration has received contradictory rulings from two federal courts on the availability.

The Northern District of Texas U.S. District Judge Matthew Kacsmaryk suspended all FDA decisions regulating mifepristone in the month of March.

The U.S. Fifth Circuit Court of Appeals, which ruled a few days later, partially blocked Kacsmaryk’s sweeping order and maintained the FDA approval. However it imposed severe restrictions on how mifepristone was used and distributed. The ruling kept mifepristone in the market but the restrictions were so severe that many women wouldn’t have access to it even in states where abortions are legal.

After Kacsmaryk’s ruling, U.S. District Judge Thomas Rice from the Eastern District Washington State barred the FDA’s restriction of the availability of Mifepristone to 17 states and Washington D.C.

According to the Centers for Disease Control and Prevention and Guttmacher Institute, Mifepristone in combination with misoprostol is the most popular method of terminating a pregnancy in America, accounting for half of all abortions.

According to documents filed by the Justice Department, former FDA employees and the pharmaceutical industry, Kacsmaryk’s ruling is the first time that a federal judge has invalidated a FDA determination of a drug’s safety and effectiveness.

Kacsmaryk was appointed by the former President Donald Trump. Senate Democrats unanimously rejected his nomination due to concerns over his views on abortion and LGBTQ issues.

The restrictions imposed by the appeals court included blocking the mail delivery of medication, reimposing the requirement of a doctor visit to obtain the drug and limiting the time that women could use the pill until the seventh week of their pregnancy. The court also banned the generic version made by GenBioPro. GenBioPro supplies two-thirds or the medication on the U.S. Market.

The 5th Circuit ruling by Judges Kurt Engelhardt, and Andrew Oldham who were both appointed by Trump, effectively reversed all of the FDA’s actions to make it easier for women access mifepristone.

The Justice Department informed the Supreme Court of the violation that would occur if the government complied with the 5th Circuit’s decision. Rice had ordered the government to maintain access in 18 jurisdictions.

Alliance Defending Freedom (ADF), the anti-abortion organization that brought the suit against FDA approval of mifepristone and filed the lawsuit, requested the Supreme Court to keep the restrictions in place. The group argued that these limits are important for patient safety. The Alliance for Hippocratic Medicine is a group that represents doctors who are against abortion.

The Alliance Defending Freedom claims to have helped draft the Mississippi Law that led the Supreme Court in the summer of last year to overturn Roe v. Wade. This landmark decision from 1973 guaranteed abortion nationwide as a constitutionally protected right. The group claims to be dedicated “to protect religious freedom, free expression, the sanctity and rights of parents, and God’s plan for marriage and families.”

Danco and the Justice Department said that the lower court rulings will take mifepristone from the market for several months while the FDA changes the labeling of the medication to comply with an appeals court’s order. They argued that this would prevent many women from accessing an FDA-approved medication which is a safe, effective alternative to surgical abortives.

Anti-abortion groups claim that the FDA’s approval of mifepristone is illegal and that the drug itself is unsafe. Former FDA officials, medical associations, pharmaceutical companies, 23 U.S. States, and hundreds of Congress members strongly dispute these claims.

The FDA has conducted a thorough review and determined that mifepristone was safe and effective. This is confirmed by data collected over decades.

The Supreme Court heard from a group of drugmakers, including Pfizer and biotech executives, that allowing lower court rulings stand would “shatter FDA’s gold standards of scientific safety and effectiveness review.” Former FDA officials said that the rulings effectively created open season for the agency by allowing anyone claiming to have experienced a side-effect of a medication, to sue and take the treatment off the market.