Supreme Court maintains abortion pill access for now as legal fight continues

The Supreme Court’s action prevents earlier rulings from a Texas-based judge and a federal appeals court from taking effect. Those rulings would have suspended several policies the FDA enacted since 2016 to make the drug more accessible — including telemedicine prescription, mail delivery, retail pharmacy dispensing and the approval of a generic version of the drug.

The lower court rulings also would have scaled back the federally approved use of the drug from 10 weeks of pregnancy to seven weeks — before many patients know they are pregnant.

The Supreme Court’s order on Friday keeps those rulings blocked until the 5th Circuit Court of Appeals rules on the merits of the dispute and the high court considers whether it wants to fully consider the issue at that point. As a result, the status quo for access to mifepristone will likely remain in place through the fall and perhaps well into next year.

As is often the case when taking action on requests for emergency relief, the court’s majority did not explain its reasons for granting the stay.

Thomas also offered no explanation for his dissent, but Alito wrote a four-page opinion detailing his reasons for opposing a stay, often echoing arguments made by the anti-abortion challengers in the case.

As the George W. Bush appointee broke with the court’s majority on Friday, he argued that his colleagues should have allowed the 5th Circuit’s ruling to be implemented because the Biden administration and Danco Laboratories, the drug company that makes the brand-name version of mifepristone, didn’t show that they would “suffer irreparable harm” under that ruling. The restrictions on the drug ordered by the appeals court, Alito wrote, “would not remove mifepristone from the market” but “would simply restore the circumstances that existed (and that the Government defended) from 2000 to 2016 under three Presidential administrations.”

Mifepristone has been used for decades as part of a two-drug medication regimen to induce abortion early in pregnancy. These medication abortions have become increasingly popular, particularly as patients have availed themselves of the newer options for access, including drugs prescribed via telemedicine and sent through the mail. In the wake of the Supreme Court’s decision last June in Dobbs v. Jackson Women’s Health Organization, which allowed states to ban abortion within their borders, the pills have also become a key way patients have circumvented those laws.

Last year, anti-abortion medical groups sued to revoke the FDA’s original 2000 approval of mifepristone as well as the agency’s policies expanding access to the drug over the past seven years. A federal district judge appointed by former president Donald Trump, Matthew Kacsmaryk, issued a preliminary ruling earlier this month largely siding with the challengers. The 5th Circuit Court of Appeals narrowed Kacmsaryk’s ruling, keeping the drug on the market but suspending the policies that broadened access.