A common, effective, and safe abortion pill can remain on the market for now, the Supreme Court ruled Friday night, in the first major Supreme Court ruling on abortion since the justices overturned Roe v. Wade last year.
Justices Clarence Thomas and Samuel Alito, two of the most hardline right-wingers on the overwhelmingly conservative-leaning court, publicly dissented from the court order.
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Over the last few weeks, the drug mifepristone, one of the two drugs typically used to induce medication abortions in the United States, has taken center stage in the country’s relentless abortion wars. Although the vast majority of research has found that mifepristone is safe, anti-abortion activists have asked federal courts to suspend the Food and Drug Administration’s 2000 approval of the drug.
Judge Matthew Kacsmaryk, who was appointed by former President Donald Trump, initially agreed to do so on April 7. However, the U.S. Court of Appeals for the 5th Circuit found on April 12 that it was too late to pause the FDA’s approval of mifepristone. Instead, that federal appeals court ruled to levy heavy restrictions on mifepristone, including requiring that it be obtained in person and re-labeling it for use only until seven weeks of pregnancy, rather than 10.
Separately, a Washington-state judge had ordered 17 states and Washington, D.C. to preserve access to mifepristone “irrespective” of the 5th Circuit court ruling. This order set up a direct conflict between federal courts.
But the Biden administration asked the Supreme Court to suspend any court orders that would change mifepristone’s availability, and the justices agreed. Instead, mifepristone will remain on the market, without restrictions, while the case winds its way through the courts.
Alito, who wrote the opinion overturning Roe, argued in his dissent Friday that the administration had failed to demonstrate that it would suffer “irreparable harm” if the restrictions were implemented. He also accused the FDA of using the dueling district court orders to create the atmosphere of “regulatory chaos,” given that the FDA did not appeal the Washington court order, and suggested that it’s not even clear that the FDA would enforce a court order to change its approach to mifepristone.
“The government has not dispelled legitimate doubts that it would even obey an unfavorable order in these cases, much less that it would choose to take enforcement actions to which it has strong objections,” Alito wrote, arguing that the FDA has “enforcement discretion.”
Had the justices not acted, the restrictions on mifepristone were set to take effect at 11:59 p.m. eastern time on Friday.
