Anti-abortion demonstrators rejoice in front of the U.S. Supreme Court because the Dobbs v. Women’s Health Organization abortion court rules, overturning Roe v. Wade’s landmark abortion decision in Washington, U.S., June 24, 2022.
Evelyn Hockstein | Reuters
On Tuesday, an anti-abortion group asked the Supreme Court to uphold restrictions on the abortion pill mifepristone while the fight over the drug’s legal status continues.
Supreme Court Justice Samuel Alito on Friday temporarily blocked the restrictions until 11:59 p.m. ET Wednesday in response to an urgent request from the Department of Justice and Danco Laboratories, the corporate that distributes mifepristone.
The Department of Justice and Danco also asked the Supreme Court to hear the case expeditiously and issue a verdict before the summer recess. The high court, which has a conservative majority of 6 to 3, can determine at any time how to proceed with the case.
The group, Alliance Defending Freedom, asked the Supreme Court, should judges determine to take the case, to investigate whether an 1873 act, often called the Comstock Act, prohibits the delivery of mifepristone mail. The anti-abortion organization also said the court should consider whether the FDA properly approved mifepristone in 2000 if it takes up the case.
Mifepristone, used together with a drug called misoprostol, is probably the most common approach to abortion in america, accounting for about half of all abortions. If lower court rulings against mifepristone ultimately hold, access to abortion could face restrictions even in some states where the procedure stays legal.
Alliance Defending Freedom attorneys have accused the FDA of illegally rolling back mifepristone restrictions through the years. The organization represents a coalition of doctors opposed to abortion called the Alliance for Hippocratic Medicine.
Former FDA officials, the pharmaceutical industry, 23 US states, lots of of members of Congress, and leading medical associations strongly dispute these claims. They are saying the FDA determined that mifepristone is protected and effective based on a rigorous scientific review, and that its decision to regulate the drug is inside its congressional authority.
Former FDA officials and the coalition of pharmaceutical firms that features Pfizerin a separate letter to the Supreme Court, warned that lower court rulings restricting using mifepristone would deal a severe blow to the FDA’s regulatory powers and hamper research, development, and investment in latest drugs.
Federal Judge Matthew Kacsmaryk of the Northern District of Texas within the US earlier this month suspended the FDA’s approval of mifepristone and any subsequent motion taken by the agency to facilitate access to the drug.
The U.S. fifth Circuit Court of Appeals blocked a part of Kacsmaryk’s order and upheld FDA approval, but reimposed restrictions on how mifepristone was used and distributed.
The appeals blocked the delivery of mifepristone by mail, required patients to see a health care provider to obtain the drug, and reduced the timeframe that ladies can take the drug until seven weeks pregnant. Additionally they blocked the 2019 approval of a generic version of mifepristone distributed by one other company called GenBioPro.
Alito overturned these lower court decisions and allowed mifepristone to remain more widely available in the meanwhile.
“Women will proceed to have access to chemical abortion drugs under the identical rules that were in place for the primary 16 years of mifepristone use,” argued lawyers for Alliance Defending Freedom, led by Eric Baptist. “The one effect of the lower court’s ruling is to put a modicum of safety back into the ladies and girls who use this drug, including supervision and oversight by a health care provider.”
However the Department of Justice and Danco, of their urgent requests to the Supreme Court, said the lower court rulings would effectively remove mifepristone from the marketplace for months because the FDA would adjust the drug’s labeling to comply with the Fifth Circuit’s decision.
US Attorney General Elizabeth Prelogar said the litigation and lower court rulings were “disturbing on every level” and would have serious implications for the pharmaceutical industry, women’s health and the FDA’s power to approve drugs.
The federal government also argued that compliance with the appellate court’s ruling would in truth be in violation of a competing court order by Judge Thomas Rice of the US Eastern District in Washington. Rice prohibited the FDA from restricting the provision of mifepristone in 17 states and Washington