Supreme Court allows the abortion pill to remain on the market — for now

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The Supreme Court issued an order allowing mifepristone to remain on the market, while legal proceedings regarding its FDA approval continue. The ruling was released in response to last week’s U.S. Court of Appeals for the Fifth Circuit’s decision regarding the distribution of mifepristone, the first drug of the abortion pill regimen. On Friday, the Court had temporarily ruled to allow the abortion pill to be dispensed by mail until it issued its decision. Five days later, the Supreme Court extended by 48 hours the stay, allowing the pill to be dispensed by mail.

On April 12, the Fifth Circuit issued a partial stay on U.S. District Judge Matthew J. Kacsmaryk’s April 7 decision to suspend the FDA approval of the abortion pill. After the Department of Justice (DOJ) appealed Kacsmaryk’s decision, the Fifth Circuit ruled that the abortion pill could continue to be distributed, but reinstated safety requirements dating back prior to 2016. Those rules required that the abortion pill be dispensed in person by a certified prescriber, that it could only be taken up to seven weeks, of pregnancy, and that all adverse events related to the abortion pill would once again need to be reported — not just women’s deaths.

The Fifth Circuit’s decision received criticism from both pro-abortion and pro-life individuals. Pro-abortion Vice President Kamala Harris said the decision “second-guesses the agency’s medical experts.” Live Action founder and president Lila Rose said she was “disappointed” in the ruling and called for the abortion pill to “be pulled nationwide.”

Following the Fifth Circuit’s ruling, Biden’s DOJ filed an emergency application Friday morning asking the Supreme Court to intervene. “If allowed to take effect, the lower courts’ orders would upend the regulatory regime for mifepristone, with sweeping consequences for the pharmaceutical industry, women who need access to the drug, and F.D.A.’s ability to implement its statutory authority,” the brief said. Danco, the manufacturer of mifepristone, also filed an emergency application to the Supreme Court, which ruled the abortion pill could continue to be distributed while it considered the issue.

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With the Supreme Court order, FDA approval of mifepristone will remain in place, ruling in favor of the Justice Department and abortion pill manufacturer Danco Laboratories. Justices Clarence Thomas and Samuel Alito issued a public dissent, saying that both the Justice Department and Danco “are not entitled to a stay because they have not shown that they are likely to suffer irreparable harm in the interim.”

Alliance Defending Freedom Senior Counsel Erik Baptist issued a statement criticizing the Supreme Court decision to keep mifepristone available.

“As is common practice, the Supreme Court has decided to maintain the status quo that existed prior to our lawsuit while our challenge to the FDA’s illegal approval of chemical abortion drugs and its removal of critical safeguards for those drugs moves forward,” he said. “Our case seeking to put women’s health above politics continues on an expedited basis in the lower courts. The FDA must answer for the damage it has caused to the health of countless women and girls and the rule of law by failing to study how dangerous the chemical abortion drug regimen is and unlawfully removing every meaningful safeguard, even allowing for mail-order abortions. We look forward to a final outcome in this case that will hold the FDA accountable.”

Editor’s note: This post will be updated as new information becomes available.

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