Supreme Court Justice Samuel Alito on Friday stayed US Judge Matthew Kacsmaryk’s order until Wednesday to give the Supreme Court more time to consider the application. The deadline is Wednesday at midnight. Alito is likely to refer the case to the full court, which has a conservative 6-3 majority.
At least until Wednesday there will be no new restrictions on mifepristone. Last year, the Supreme Court, with its conservative majority, overturned the country’s abortion law, which had been in effect for almost 50 years.
Two judgments in focus
The drug mifepristone is usually used together with misoprostol to terminate a pregnancy within the first ten weeks. This drug form accounts for more than half of all abortions in the United States. Anti-abortion activists have sued the US Food and Drug Administration (FDA) in Texas, arguing that the approval of mifepristone was an illegal process. They want to make access to medical abortion more difficult.
In early April, federal judge Kacsmaryk issued an injunction to suspend approval of the drug for the duration of the legal battle. Minutes after that ruling, US District Judge Thomas Rice in Washington ordered the FDA not to make any changes to access to mifepristone. However, that decision only applies to 17 Democrat-led states and the District of Columbia, which had advocated for the government to relax special safety restrictions on the pill.
Court of Appeal agreed to restrictions
The Biden administration stated in its Supreme Court petition that the FDA cannot comply with either order. On Wednesday, a federal appeals court, at the request of the US government, ruled that the drug can remain on the market, but with significant restrictions, such as requiring it to be dispensed in person by a doctor and limiting use to the first seven places ten weeks of pregnancy so far.
The government is now asking the Supreme Court to set aside that appeal ruling and stay Kacsmaryk’s order in its entirety, allowing mifepristone to continue to be available without new restrictions while the lawsuit is pending.
Restrictions would have applied from Saturday
Maintaining access to mifepristone for the time being initially halts Wednesday’s appeals court decision. This should come into force on Saturday. It would also have required the drug to be taken in the presence of a doctor, which precludes dispensing it to patients.
None of the rulings concern the other abortion pill misoprostol, which can be used alone to terminate pregnancies but is more effective when taken in combination with mifepristone.
Months of appeal process to be expected
Whether or not the Supreme Court decides to stay Kacsmaryk’s order, it will not rule on the substance of the case. Rather, the court will decide whether and how mifepristone can be distributed while the case is pending.
In any event, the case will be remanded to the Federal Circuit, where the FDA will appeal Kacsmaryk’s injunction. A hearing is already scheduled for mid-May. The appeal process could take months – and this is where the Supreme Court can come into play again.
