Biden administration appeals abortion pills case to Supreme Court

President Joe Biden’s administration is seeking an urgent appeal from the Supreme Court to overturn a Texas judge’s ruling that invalidated the approval of the most widely used abortion drug in the US.

The Justice Department asked the 5th Circuit to stay the ruling while the case went through appeals. That conservative court ruled late Wednesday evening that the abortion pill mifepristone can still be used for the time being, but shortened the pregnancy period in which it can be taken and said it could not be delivered by mail.

Attorney General Merrick Garland said he would ask the Supreme Court to stay the Texas ruling, known as the Alliance for Hippocratic Medicine v. FDA.

“The Department of Justice strongly disagrees with the Fifth Circuit’s decision in Alliance for Hippocratic Medicine v. FDA to partially deny our request for stay pending appeal. We will seek emergency relief from the Supreme Court to defend the FDA’s scientific judgment and protect Americans’ access to safe and effective reproductive care,” he said in a statement.

The White House is working to counter the many abortion restrictions put in place by the states and courts after the Supreme Court overturned Roe v. Wade. Abortion rights are expected to be one of the dominant issues in the 2024 presidential election.

The 5th Circuit ruling allows the use of the popular abortion pill, but preventing mifepristone from being sent through the mail significantly restricts access to abortion.

Many women in states with restrictive abortion laws try to have the procedure performed elsewhere or from a state where it is legal.

Many abortion clinics make heavy use of drug-only abortions. Many of them have also moved to democratically oriented states to maintain access to abortion for millions of women across the country.

The 5th Circuit, in the 2-1 vote, put the panel of judges on hold changes that the FDA had made since the drug’s original approval for use, including extending the gestation period in which the drug can be used from seven weeks to ten, and also allows it to be delivered by post, without having to go to a doctor’s office.

The two justices who voted to tighten the restrictions, Kurt Engelhardt and Andrew Oldham, are both appointees of former President Donald Trump. The third judge, Catherine Haynes, is an appointee of former President George W. Bush. She said she would have put the lower court ruling on hold entirely for the time being to allow for oral arguments in the case.

Trump appointee Judge Matthew J. Kacsmaryk ordered a halt to the abortion pill mifepristone over fears for its safety

AG Merrick Garland overturned that ruling, saying ‘We will seek emergency help from the Supreme Court’

Texas Judge Matthew Kascmaryk, a Donald Trump appointee, on Friday ordered the Federal Drug Administration to withdraw its approval of mifepristone — one of two drugs used in more than half of all abortions in the United States.

In their appeal, DoJ lawyers argue that the challengers in the Texas case had no right to sue since they were not personally harmed by the abortion pill.

Also, there is virtually no precedent for a lone judge overturning FDA decisions on drugs.

Pharmaceutical executives warned that FDA approval of other drugs could be jeopardized if Kacsmaryk’s decision stands.

To further complicate matters, a federal judge in Washington state on Friday issued a preliminary injunction in another case ordering the FDA not to make changes that would restrict access to mifepristone in at least 17 states where Democrats filed a lawsuit.

The dueling decisions may lead the Supreme Court to take up the matter even more quickly.

Mifepristone blocks the hormone progesterone in the body and is used together with the drug misoprostol to terminate pregnancy within the first 10 weeks.

More than half of abortions in the US are now drug-induced abortions, and the vast majority of those include that two-drug protocol.

But the second drug in that regimen, misoprostol, can also be used alone to induce abortion.

Several states are now stockpiling misoprostol in anticipation of uncertainty about how much longer mifepristone will be available.

The Food and Drug Administration approved the use of mifepristone in 2000, but the Texas plaintiffs argued that the FDA had not sufficiently assessed mifepristone’s safety.

Medical groups point out that mifepristone has been used by millions of women over the past 23 years with a low complication rate.

Proponents point out that mifepristone has been used for decades without major complications

Common side effects of mifepristone include cramping, bleeding, nausea, headache, and diarrhea. In rare cases, women may experience excessive bleeding that requires surgery to stop.

According to the FDA, by June 2022, more than 5.6 million women in the US had used the drug. During that time, the agency received 4,200 reports of complications in women, or less than one-tenth of 1% of women taking the drug.

When the drug was initially approved, the FDA restricted its use to seven weeks of pregnancy. It also required three in-person office visits: the first to administer mifepristone, the next to administer the second drug misoprostol, and the third to address any complications. It also required a doctor’s supervision and a reporting system for any serious effects from the drug.

If the appeals court’s claim upholds, those would again be the conditions under which mifepristone could be provisionally dispensed.