Supreme Court to decide today whether abortion pill can stay in use

The Supreme Court is expected to decide sometime Friday whether the popular abortion pill mifepristone can continue to be widely available or whether its use will be restricted while a lawsuit involving it goes through appeals.

The Supreme Court issued a temporary stay after a Texas judge ruled that it should not have been approved by the Food and Drug Administration. The original stay expired on Wednesday, but Judge Samuel Alito extended it until Friday midnight.

The judges will meet on Friday for a private conference where they can discuss the matter. The extra time may be part of an effort to draft an order that enjoys broad support among the judges or one or more judges may write a separate opinion asking for a few extra days.

The challenge for mifepristone, caused by abortion enemies, is the first abortion controversy to reach the nation’s highest court since the conservative majority rejected Roe v. Wade 10 months ago.

Since then, more than a dozen states have banned abortion outright, and several others have imposed heavy restrictions.

A new CBS News poll last week found that nearly two-thirds of the country want mifepristone to remain available, amid a fierce debate over abortion taking place across the country.

Mifepristone is a popular abortion medication

Abortion rights are expected to be one of the dominant issues in the 2024 presidential election.

In Texas, abortion opponents filed suit in November, arguing that the Food and Drug Administration’s original approval of mifepristone 23 years ago and subsequent amendments were flawed.

They won a ruling on April 7 U.S. District Judge Matthew Kacsmaryk, an appointee of former President Donald Trump, withdrawing the FDA approval of mifepristone. The judge gave the Biden administration and New York-based Danco Laboratories, the maker of mifepristone, one week to appeal and try to put his ruling on hold.

In response to a swift appeal, two more Trump appointees in the 5th US Circuit Court of Appeals said the original FDA approval would be tentative.

But Judges Andrew Oldham and Kurt Englehardt said most of the remainder of Kacsmaryk’s ruling could take effect while the case progresses through federal courts.

Their ruling would effectively overturn changes made by the FDA from 2016, including the extension of seven to 10 weeks of gestation when mifepristone can be used safely.

Associates of the group, Progressive Anti-Abortion Uprising, Kristin Turner, of San Francisco, left, Lauren Handy, of Washington, and Caroline Smith, of Washington, right, demonstrate against abortion pills outside the Supreme Court

The court also said the drug cannot be shipped or dispensed as a generic and that patients seeking it must make three in-person visits to a doctor. Women may also need to take a higher dosage of the drug than the FDA recommends.

The administration and Danco have said chaos will ensue if those restrictions come into effect as the case continues. Perhaps adding to the confusion, a federal judge in Washington has ordered the FDA to maintain access to mifepristone under current rules in 17 Democratic-led states and the District of Columbia, which has filed a separate lawsuit.

The Biden administration has said the rulings are inconsistent and create an unsustainable situation for the FDA.

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

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.

The mifepriston case is the first abortion case heard by the nine judges since the Conservative majority overturned Roe v Wade

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.

And a new legal wrinkle threatens even more complications. GenBioPro, which makes the generic version of mifepristone, filed a lawsuit Wednesday to preemptively prevent the FDA from removing its drug from the market if the Supreme Court does not intervene.

For now, the Supreme Court is only being asked to block lower court rulings until the end of the trial. But the administration and Danco have a fallback argument if the court disagrees. They are asking the court to accept mifepristone’s challenge, hear the arguments and decide the case by early summer.

The judge rarely takes such a step before at least one court has thoroughly examined the legal issues.

The New Orleans-based 5th Circuit has already ordered an expedited schedule for hearing the case, with arguments set for May 17.