Supreme Court puts off decision on abortion pill mifepristone for two more days

The Supreme Court on Wednesday extended its temporary hold on a court decision that prevents patients from obtaining the abortion pill mifepristone by mail.

WASHINGTON — The Supreme Court on Wednesday delayed making a decision that could prevent patients from obtaining the abortion pill mifepristone in the mail by extending a temporary block on a lower court ruling.

In a brief order issued by Justice Samuel Alito, the court said the hold first announced last week would be extended another two days until just before midnight on Friday. The announcement says nothing about how the court will ultimately resolve the case, although the delay could indicate there is division among the nine justices.

The decision means that, at least for now, women can still obtain mifepristone by mail as the legal battle continues.

The Supreme Court is weighing whether to more permanently block a decision issued by Texas-based U.S. District Judge Matthew Kacsmaryk that handed a sweeping victory to abortion opponents. Both the Justice Department and Danco Laboratories, which makes the brand version of mifepristone, Mifeprex, had asked the court to immediately step in.

Both the Justice Department and Danco said the court should immediately block Kacsmaryk’s April 7 ruling in full while it considers what steps to take.

Last week, the 5th U.S. Circuit Court of Appeals gave the FDA a partial victory by declining to suspend the original Food and Drug Administration approval of mifepristone in 2000, which would have made distribution of the drug unlawful.

But the court allowed separate elements of Kacsmaryk’s decision to remain in place, including a prohibition on obtaining the drug by mail, which is what the Justice Department is contesting at the Supreme Court. The lower court ruling, if left in effect would also impose other restrictions and suspend approval of a generic version of the drug made by GenBioPro.

The abortion drug Mifepristone.Phil Walter / Getty Images

In order to win a more permanent block on the lower court ruling, the Biden administration would need to win the votes of at least five of the nine justices on the court, which last summer in a 5-4 ruling overturned the landmark Roe v. Wade ruling that said women nationwide have the right to obtain an abortion.

The new case raises different legal issues concerning the FDA’s process for approving drugs, but will nevertheless put to the test the court’s pledge last year that it would leave abortion policy to the states and federal government.

A further wrinkle was added by a federal judge in Washington state who issued a preliminary injunction this month in a different case barring the FDA from “altering the status quo and rights as it relates to the availability of mifepristone.”

That ruling, also issued April 7, applies only to the 17 liberal-leaning states and the District of Columbia that filed a lawsuit in February challenging the FDA’s regulations over the drug.

Separately, GenBioPro filed its own lawsuit on Wednesday against the FDA claiming its due process rights would be violated if there is an abrupt change to the regulatory scheme.

While a different drug, misoprostol, can be used alone for abortions, experts have said it is not as effective in terminating pregnancies as it is when administered in tandem with mifepristone.

A majority of abortions in the U.S. are carried out with the use of pills, according to a survey conducted by the Guttmacher Institute, a research group that supports abortion rights.

As a result of the Supreme Court’s decision to overturn Roe v. Wade, various conservative states have enacted tough abortion restrictions that already make it difficult if not impossible for women to terminate a pregnancy, whether by accessing pills or undergoing a surgical procedure. There are 12 states where abortion is effectively banned altogether, according to Guttmacher.

More Stories

Stay informed by joining TruthRow

24/7 coverage from 1000+ journalists. Subscriber-exclusive events. Unmatched political and international news.

You can cancel anytime