US Supreme Court extends allowing abortion pill by mail while weighing appeal

UPDATE, 4/19/23: The Supreme Court has extended its stay until end of day on Friday, April 21.

4/14/23: Just one day after the Fifth Circuit Court of Appeals upheld the suspension of the mail-order abortion pill (mifepristone) and required that the drug be dispensed again in person, the Supreme Court has temporarily paused that restriction as they weigh an appeal.

Previously, U.S. District Court Judge Matthew J. Kacsmaryk suspended the FDA’s approval of mifepristone, which is used in chemical abortions. The Fifth Circuit Court responded with a 2-1 decision, granting a partial stay to the FDA and Danco, which manufactures the abortion pill.

The Biden administration, meanwhile, 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 also filed an emergency application, saying Supreme Court justices should defer to the FDA’s scientific expertise.

READ: Poll: Most Americans distrust FDA’s abortion pill approval process

Justice Samuel Alito responded by granting the government’s request for a stay, but only until Wednesday. He also requested an additional briefing by Tuesday. Ultimately, the Supreme Court decision will determine whether or not restrictions on the abortion pill will remain in place while the courts work.

Alliance Defending Freedom (ADF), which represented the plaintiffs in the case at the Fifth Circuit, explained:

“In its decision, the 5th Circuit ruled that abortionists are no longer allowed to send chemical abortion drugs through the mail, which the FDA had been allowing since 2021, in direct violation of longstanding federal law. Additionally, in 2016, the FDA extended the permissible gestational age of the baby for which a girl or woman may take chemical abortion drugs—from seven weeks’ gestation to 10 weeks’ gestation. The 5th Circuit’s order moved that back to seven weeks’ gestation, protecting the mother from adverse complications that increase with gestational age, reinstated necessary doctor visits, and brought back the requirement that abortionists must check women for complications after their chemical abortions.

The 5th Circuit also agreed with ADF attorneys that the FDA’s approval of generic mifepristone was unlawful, and that the manufacturer must cease production by Friday.”

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ADF encouraged the Supreme Court to keep women safe from the dangerous abortion pill in a statement, saying, “The 5th Circuit rightly required the agency to prioritize women’s health by restoring critical safeguards, and we’ll urge the Supreme Court to keep that accountability in place.”

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