WASHINGTON — The Supreme Court on Friday allowed the most commonly used abortion pill to remain widely available in the United States.
The court completely blocked an April 7 decision by Texas-based US District Judge Matthew Kacsmaryk, which invalidated the long-standing Food and Drug Administration approval of mifepristone and gave anti-abortionists a resounding victory.
Two of the nine justices – Conservatives Clarence Thomas and Samuel Alito – said they allowed part of Kacsmaryk’s ruling to go ahead.
The Justice Department and Danco Laboratories, which makes mifepristone’s brand-name version, Mifeprex, had asked judges to intervene after a federal appeals court upheld a number of provisions in Kacsmaryk’s order that would have jeopardized widespread access to the drug. including restrictions on mailing the pill to patients.
The court, which has a 6-3 Conservative majority, on April 14 issued a temporary stay of Kacsmaryk’s sentence, which was extended by two days on Wednesday while judges considered what steps to take.
Alito said in a brief dissenting opinion on Friday that a decision to suspend regulatory changes made since 2016 would not have prevented mifepristone from being available.
“Currently, the applicants are not eligible for a stay because they have not demonstrated that they are likely to suffer irreparable harm in the meantime,” Alito wrote.
“Contrary to the impression many may have, this injunction would express no opinion as to the merits of whether the FDA acted lawfully in any of its actions related to mifepristone,” he added.
The court’s decision means women can continue to receive mifepristone in the mail, use it at home and use it for up to 10 weeks into pregnancy as litigation continues in the lower court. The generic version of the drug, manufactured by GenBioPro, will also continue to be available.
The case provided a significant test for the same conservative majority that passed the landmark Roe v. Wade, which had guaranteed a constitutional right to abortion for 50 years.
The abortion pill dispute raises several legal questions about the FDA’s process for approving drugs, but the case raised questions about the court’s commitment last year to leave abortion policy to the states and federal government.
A Washington state judge added another wrinkle when, in another case, he issued an injunction barring the FDA from “changing the status quo and rights regarding the availability of mifepristone.”
That decision, also issued on April 7, only applies to 17 liberal-leaning states, and Washington, DC, filed a lawsuit in February challenging FDA’s rules on the drug.
The US Fifth Circuit Court of Appeals narrowed the scope of Kacsmaryk’s broader decision last week by refusing to suspend the FDA’s original approval of mifepristone as Kacsmaryk had done.
But in confirming other parts of its decision, which dealt with several steps the FDA had taken in recent years to make the pill easier to get, the Justice Department and Danco argued that there was still tremendous disruption to the pill’s availability would give.
The current labeling of pills on the market would not comply with the 5th Federal Court’s restrictions that would make all pills on the market illegal, the DOJ and Danco argued.