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Supreme Court halts abortion drug case through Wednesday

Order puts brief pause on controversial case involving a drug commonly used for miscarriage management and medication abortions

Mifepristone and misoprostol, the two drugs used in a medication abortion, are seen in June at a New Mexico women's clinic that provides legal medication abortion services. The DOJ has asked the Supreme Court to weigh in on a case that would ban the drug.
Mifepristone and misoprostol, the two drugs used in a medication abortion, are seen in June at a New Mexico women's clinic that provides legal medication abortion services. The DOJ has asked the Supreme Court to weigh in on a case that would ban the drug. (Getty Images)

The Supreme Court temporarily paused through at least Wednesday a court order that would have restricted a commonly used abortion drug nationwide in a brief order issued Friday afternoon.

The order, from Justice Samuel A. Alito Jr., gives challengers to the 2000 Food and Drug Administration approval of the drug mifepristone until Tuesday at noon to respond.

A group of 253 lawmakers filed a brief in the Supreme Court case over the drug Friday, arguing the lower court ruling upset decades of approvals by the FDA and substituted a court’s judgment for the agency Congress put in charge of drug safety. The group includes 203 out of 213 Democratic House members and all members of the Senate Democratic Conference, except for Joe Manchin III of West Virginia.

“More immediately, the misguided stay of mifepristone’s current FDA-approved conditions of use will reduce access to abortion, exacerbating an already significant reproductive health crisis,” the brief said.

Earlier on Friday, the Justice Department and a pharmaceutical company asked the high court to intervene following a ruling from the U.S. Court of Appeals for the 5th Circuit partially upholding the lower court order restricting availability of the drug that would have taken effect this weekend. The applications from the DOJ and Danco Laboratories, which makes the drug mifepristone, asked the justices to stop a ruling from the 5th Circuit that would limit the availability of the drug while an appeal plays out.

The DOJ argued that the appeals court ruling would limit abortion access nationwide and conflicts with a separate ruling from a district court in Washington state to preserve the status quo for the drug’s availability in 17 states and the District of Columbia.

[Related: Appeals court keeps abortion drug on the market, with some limits]

“If allowed to take effect, the lower courts’ orders would thwart FDA’s scientific judgment and undermine widespread reliance in a healthcare system that assumes the availability of mifepristone as an alternative to more burdensome and invasive surgical abortions,” the DOJ brief said.

Danco wrote in its application that the appeals court ruling, as well as a trial judge’s ruling against the FDA’s approval of mifepristone, undermined the agency’s process.

The judges at the 5th Circuit engaged in “blatant second-guessing” of experts at an administrative agency that would “inject confusion, uncertainty, and expense into the regulation of an industry that plays a foundational role in the health and safety of millions of Americans,” Danco wrote.

The drugmaker also pointed to last year’s Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which overturned the constitutional right to an abortion.

“The Court announced in Dobbs that it was returning the issue of abortion to the political branches,” Danco wrote. “If the Court denies a stay, it abandons that assurance.”

The court fight over mifepristone spun into high gear last week when Matthew Kacsmaryk, a judge for the U.S. District Court for the Northern District of Texas, ruled to suspend the FDA’s 2000 approval of mifepristone. Mifepristone is one of the two drugs used in miscarriage management and medication abortion, along with misoprostol, and is used in roughly half of all abortion care.

Kacsmaryk’s ruling would have gone into effect on Saturday.

The U.S. District Court of Appeals for the 5th Circuit on Wednesday ruled to keep mifepristone on the market past Saturday, but with limitations. The 5th Circuit’s ruling put the suspension of the FDA’s approval of the drug on hold, but rolled back the agency’s later revisions to that approval, meaning patients could only access the drug up to seven weeks of pregnancy and could not access the drug by mail.

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