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Supreme Court Fights Over Abortion Pill: What’s Next?

Nothing will change for now. That’s what the Supreme Court said Friday night about access to a widely used abortion pill.

A court case that began in Texas has sought to reverse the Food and Drug Administration’s approval of the drug, mifepristone. Lower courts had said that women seeking the drug should face more restrictions on obtaining it while the case continues, but the Supreme Court disagreed.

The court action will almost certainly leave access to mifepristone unchanged until at least next year while appeals, including a possible appeal to the higher court, unfold.

The new abortion controversy comes less than a year after the Supreme Court’s conservative majority struck down Roe v. Wade and allow more than a dozen states to ban abortion altogether.

Here’s a look at the drug at issue in the new case, how the case got to the nation’s highest court, and what’s next in the legal case.



Mifepristone was approved for use by the Food and Drug Administration more than two decades ago. It has been used by more than 5 million women to safely terminate their pregnancies, and today more than half of women who terminate a pregnancy are dependent on the drug, the Justice Department said.

Over the years, the FDA has loosened restrictions on the drug’s use, extending from seven to 10 weeks into a pregnancy when it can be used, lowering the dose needed to safely terminate a pregnancy, removing the requirement for visit a doctor in person to get it. and allow pills to be obtained by mail. The FDA has also approved a generic version of mifepristone that its maker, Las Vegas-based GenBioPro, says accounts for two-thirds of the national market.

Mifepristone is one of two pills used in medical abortions, along with misoprostol. Health care providers have said they might switch to misoprostol only if mifepristone is no longer available or too hard to obtain. Misoprostol is somewhat less effective at terminating pregnancies.



Late last year, a mifepristone lawsuit was filed in Amarillo, Texas. Alliance Defending Freedom, a conservative Christian legal group, represents opponents of the pill, who say the FDA’s approval of mifepristone was flawed.

Why Yellow? U.S. District Judge Matthew Kacsmaryk, who was nominated by then-President Donald Trump, is the only district court judge there, ensuring that all cases filed in the West Texas city reach him. Since he took office, he has ruled against President Joe Biden’s administration on several other issues, including immigration and LGBTQ protections.

On April 7, Kacsmaryk issued a ruling that would revoke the FDA’s approval of mifepristone entirely, but put the decision on hold for a week to allow for an appeal.

Complicating matters, however, on the same day that Kacsmaryk issued his order, a Washington state court issued a separate ruling in a lawsuit brought by liberal states seeking to preserve access to mifepristone. Spokane-based Washington Judge Thomas O. Rice, who was nominated by then-President Barack Obama, ordered the FDA not to do anything that could affect the availability of mifepristone in the defendant states. The Biden administration had said that it would be impossible to follow the directives of both justices at the same time.



The Biden administration responded to Kacsmaryk’s ruling by asking the New Orleans-based US Court of Appeals for the Fifth Circuit to stop it from taking effect for now.

The appeals court did not do that, but reduced Kacsmaryk’s ruling so that mifepristone’s initial approval in 2000 would not be revoked. And it agreed with him that changes the FDA made to relax prescribing and dispensing rules the drug should be stopped. He said those rules, including expanding when the drug can be taken and allowing delivery of the drug by mail, should be suspended while the case continues.

The appeals court ruled with a 2-1 vote. Most of the justices, Kurt Engelhardt and Andrew Oldham, are chosen by Trump.

The Biden administration and the New York-based maker of mifepristone, Danco Laboratories, appealed to the Supreme Court, saying allowing the appeals court restrictions to take effect would cause chaos. At first, faced with a tight deadline, the Supreme Court took a breather and issued an order suggesting it would act on Wednesday night. But no decision was made on Wednesday, and instead the court simply granted itself an extension until just before midnight on Friday. It was not clear why.

The court met its second self-imposed deadline and issued its brief decision around 6:30 p.m. in Washington. Two conservative justices, Clarence Thomas and Samuel Alito, said they disagreed with the court’s action, but no other justices commented.



The case is on the fast track. Now that the high court has established the rules that will govern access for now, the case can continue its way through the courts.

The US Court of Appeals for the Fifth Circuit has already announced that it will hear arguments in the case in less than a month, on May 17. Both parties, as well as interest groups, will submit written reports prior to those arguments. And a panel of three judges from the court will hear the case, although the court has not yet said who those three judges will be. The group will not issue a decision from the bench, but will listen to arguments and ask questions. That will give the audience an idea of ​​what they are thinking. Their decision will be made in private after oral arguments, and at some point they will issue a written decision announcing it.

Both parties then have the opportunity to appeal, taking the case to all appellate court judges or directly to the Supreme Court. However, the judges take a break for the summer and don’t start hearing cases again until October.


Follow AP’s coverage of the US Supreme Court at https://apnews.com/hub/us-supreme-court.



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