Updated April 14, 2023 at 3:33 PM ET
The Supreme Court could respond as soon as Friday to a formal request from the Justice Department to block a federal appeals court decision that limits access to the abortion drug mifepristone.
The government, on behalf of the Food and Drug Administration, earlier today requested an immediate administrative stay to preserve the status quo while the court considers the request. Portions of a Texas district court’s order that limits the drug would otherwise take effect at 1:00 a.m. ET on Saturday, April 15.
The administration brief calls the lower court rulings “unprecedented” and says they “unleashed regulatory chaos” by suspending the existing FDA-approved conditions of use for mifepristone.”
The brief used the strongest language in urging the court to block the lower court orders.
“The district court countermanded the scientific judgment the FDA has maintained across five administrations; nullified the approval of a drug that has been safely used by millions of Americans over more than two decades; and upset reliance interests in the health care system that depends on the availability of mifepristone as an alternative to surgical abortion for women who choose to lawfully terminate their early pregnancies.” The administration said those harms would be felt throughout the nation because mifepristone has lawful uses in every state, regardless of whether abortion is legal, for instance, to treat women who have miscarried.
How the cases got here
In November of 2022, anti-abortion groups filed a lawsuit in Texas challenging the Food and Drug Administration’s approval of the drug — which happened in 2000.
Earlier this month, U.S. District Judge Matthew Kacsmaryk issued a preliminary injunction to vacate the FDA’s approval of the drug altogether.
The FDA responded by requesting an emergency stay of the decision, elevating the case for the Fifth Circuit Court of Appeals to weigh in.
The appellate panel then issued a complicated ruling on the injunction, siding in part with the FDA and part with the anti-abortion coalition.
It would allow the FDA’s original approval of mifepristone to remain in place, the panel said. But the panel also allowed Kacsmaryk’s injunction to remain in effect on the FDA’s later actions on mifepristone, including the expansion to 10 weeks of pregnancy and telehealth access — a decision that could greatly diminish access to the drug.
Meanwhile, a competing ruling out of Washington state could limit the Texas injunction’s reach.
The final ruling from the appellate panel led the DOJ to appeal even higher to the Supreme Court in hopes of ensuring access to the drug is fully restored.
Abortion rights groups flock to the Supreme Court
Hours before Judge Kacsmaryk’s order was scheduled to take effect, abortion rights groups gathered at the steps of the Supreme Court to voice their support for a drug they say is “as safe as Tylenol.”
“I was sitting back there, trying to think about how many times I’ve stood on these steps saying, ‘No, we are not going to accept what you’re handing us,’ ” said Jenny Lawson, vice president of organizing and engagement campaigns with Planned Parenthood Action Fund. “How many more times, and in how many more ways, do the American people have to tell you that we support abortion rights?”
Olivier Douliery / AFP via Getty Images
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AFP via Getty Images
Abortion rights advocates rally outside the Supreme Court on Friday, speaking out against abortion pill restrictions.
The issue was a personal one for Virginia Kase Solomón, CEO of the League of Women Voters of the United States. She said she was prescribed mifepristone when she experienced an ectopic pregnancy that needed to be terminated.
“It was not a choice. It was medically necessary,” she said. “The doctors were able to use methotrexate and mifepristone to treat me. And without this important life-saving combination of medication, who knows what the outcome would have been?”
Morgan Hopkins, president of the abortion rights group All* Above All, said “an anti-democratic process” was takingplace on abortion. A recent Pew Research Center poll found that 53% of Americans say medication abortion should be legal in their state.
The Dobbs decision — which overturned Roe v. Wade, declaring that the constitutional right to abortion no longer exists — and the rise in state-level restrictions have had a “galvanizing effect” on supporters, she said.
“We know that the majority of voters, the majority of the American public support abortion rights and access,” Hopkins said. “I think now the threat feels real to people. So that’s why we’re seeing people be outraged and taking action and voting. We can’t lose sight, though, that there are people being impacted right now by these restrictions.”
Nina Totenberg, Sarah McCammon and Becky Sullivan contributed to this report.
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The Justice Department is looking to reinstate full access to mifespristone after an appeal to the Fifth Circuit resulted in access with limitations.