The Right-Wing Attack on Abortion Pill-Access Is Not Over
The Supreme Court has stepped in to stay a lower court decision that would have imposed nationwide restrictions on access to mifepristone, a widely used abortion medication, but the court battle isn’t over. The high court’s order keeps mifepristone available as a fight over nationwide access continues to work its way through the legal system. The Fifth Circuit Court of Appeals is scheduled to hear arguments in the case on May 17.
A majority of justices voted in favor of keeping mifepristone available, though it’s not clear which or how many. At least two justices publicly dissented from the unsigned order: Samuel Alito said the applicants “have not shown that they are likely to suffer irreparable harm” if the lower court’s decision were upheld, and Clarence Thomas who asserted he would have denied the Justice Department’s request to put the lower court’s decision on hold, but did not elaborate further.
“We’re not out of the woods yet,” Nancy Northup, president of the Center for Reproductive Rights said in a statement on Friday. “The lower court ruling out of Texas has zero basis in fact or law — and yet it has sowed chaos, confusion and panic for patients and providers across the country, including those in states with strong protections for abortion rights.”
For now, patients and providers will still be able to access the care that they need as the case unfolds. Anything short of an order of this kind would have, in the words of Carrie Flaxman, senior director of public policy litigation and law at Planned Parenthood Federation of America, unleashed “really devastating impacts on access, access to care, and [sown] confusion and chaos for providers and patients.”
Had the court sided with the anti-abortion advocates who brought the case, it could have ordered the FDA to rescind its approval of mifepristone, forcing medical providers in states where abortion remains legal to resort to other, less effective methods for early termination.
“I continue to stand by FDA’s evidence-based approval of mifepristone, and my administration will continue to defend FDA’s independent, expert authority to review, approve and regulate a wide range of prescription drugs,” President Joe Biden said in a statement hailing the decision on Friday.
Many providers were making plans to offer abortions using misoprostol — the second drug used in a typical medication abortion, and one which can also be taken alone to induce a miscarriage — a medication that remains widely available without a prescription. Democratic governors of states like Massachusetts, Washington, New York and California were stockpiling both drugs as a precaution in advance of the ruling.
The Supreme Court’s decision heads off the judicial crisis created by dueling federal court decisions — both of which ordered the FDA to take contradictory actions — and follows a months-long saga that has sowed chaos around the country.
In November, a coalition of anti-abortion medical societies filed a lawsuit arguing that the FDA had not adequately investigated mifepristone’s safety when the drug was first approved in 2000, or when additional restrictions were lifted in 2016. The flawed lawsuit was intentionally brought before Matthew Kacsmaryk, a Donald Trump-appointed judge sympathetic to the anti-abortion movement, and he, unsurprisingly, granted the plaintiff’s wish and ordered the FDA to withdraw its two decade approval of mifepristone.
That ruling was answered 20 minutes later by a federal judge in Washington state, who ordered the FDA to maintain approval of mifepristone in 17 states and the District of Columbia, which had petitioned to keep the drug available. Kacsmaryk’s ruling was appealed and partially upheld by the conservative Fifth Circuit Court of Appeals, before the Supreme Court stepped in on Friday to temporarily halt the decisions from going into effect.
More than 100 studies conducted over the course of more than 30 years in 26 countries have repeatedly proven mifepristone to be extremely safe and effective with very few complications.
The pharmaceutical industry is also breathing a sigh of relief. Drug companies, their executives, and investors had warned of a destabilizing period that would have upended the process for both approving drugs and maintaining approval of drugs, concerned any drug could be subject to a similarly baseless lawsuit that drives it off the market.