Supreme Court Allows Abortion Pill Access as it Considers Cases

Justice Samuel Alito put a five-day hold on new court-imposed restrictions on a widely used abortion drug, giving the US Supreme Court more time to decide how to handle the Biden administration’s request for a longer delay.

The administrative stay comes hours before the restrictions on mifepristone were set to take effect. Administrative stays are designed to preserve the status quo for a short period, not to suggest any views on the merits of a case.

Alito instructed the anti-abortion groups opposing the drug to file their response by Tuesday at noon Washington time. His stay last until Wednesday at 11:59 p.m. Washington time.

Alito, who wrote the court’s 2022 decision overturning the constitutional right to abortion, is assigned to handle emergency matters from the New Orleans-based 5th US Circuit Court of Appeals. He probably will refer the matter to the full nine-member court, as justices typically do in divisive cases.

A federal appeals court late Wednesday partially stayed a ruling that would have suspended mifepristone’s approval by the Food and Drug Administration. Under the appeals court order, mifepristone would remain an option for many patients, but it could no longer be prescribed after the seventh week of pregnancy or dispensed by mail or by non-physicians.

US Solicitor General Elizabeth Prelogar asked the high court Friday to go further and put all of US District Judge Matthew Kacsmaryk’s order on hold while the Food and Drug Administration presses an appeal.

“The resulting loss of access to mifepristone would be profoundly damaging,” said Prelogar, the administration’s top courtroom lawyer. “For many patients, mifepristone is the best method to lawfully terminate their pregnancies. They may choose mifepristone over surgical abortion because of medical necessity, a desire for privacy, or past trauma.”

Prelogar suggested the court alternatively could grant review and hear arguments on an expedited basis during its current term. Danco Laboratories LLC, the drug’s primary maker, filed a similar request with the court Friday.

The lower court orders would affect the most common method for terminating a pregnancy, restricting access even in states where abortion is otherwise legal. Mifepristone was approved by the FDA more than two decades ago, but abortion opponents now contend it is unsafe.

The cases are Danco Laboratories v. Alliance for Hippocratic Medicine, 22A901, and US Food and Drug Administration v. Alliance for Hippocratic Medicine, 22A902.

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editor responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

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