Supreme Court Pauses Federal Court’s Restrictions on Abortion Pill Access

Updated 5pm EST, April 14th, 2023 

• Supreme Court Justice Samuel A. Alito Jr. issued a temporary pause on the federal court's ruling, ensuring that the abortion pill, mifepristone, will remain widely accessible.
• The court's short order, known as a "shadow docket," will expire at midnight on Wednesday, April 19.  

What’s the story?

• The Biden administration filed an emergency application to the Supreme Court requesting the justices pause parts of an appeals court ruling that limited the accessibility of the abortion pill.
• The application asked the court to allow the drug, mifepristone, to remain widely available while the government pursues an appeal. 
• This is the first major abortion case to reach the Supreme Court since Roe v. Wade was overturned in June 2022.

What led to the application? 

• Last week, District Judge Matthew J. Macsmaryk, a Trump appointee, revoked the Food and Drug Administration’s (FDA) approval of mifepristone. Macsmaryk’s decision made the sale of the medication illegal nationwide. The FDA approved the drug over 20 years ago, but anti-abortion activists claim the administration failed to test its safety sufficiently. Mifepristone is used in around 98% of medical abortions in the U.S. 
• Immediately after the decision, the Obama appointee, District Judge Thomas Rice, issued a contradictory ruling ordering the FDA not to change mifepristone access across 17 Democrat-led states.
• Earlier this week, the New Orleans-based 5th U.S. Circuit Court of Appeals announced it would allow partial access to the drug but kept multiple limitations in place. The appeals court eliminated measures introduced by the FDA in 2016 to increase accessibility to the drug. The restrictions include: requiring an in-person doctor visit to prescribe and dispense mifepristone, limiting the approval of its use to the first seven weeks of pregnancy rather than 10, and banning the distribution of the drug through the mail. 
• Following the appeals court’s decision, the Justice Department stepped in to condemn the dialing back of accessibility. DOJ lawyers argued that the court’s actions “upended decades of reliance” by depriving patients of dependable access “based on the court’s own misguided assessment of the drug’s safety.”

What does the request say?

• The application criticizes the court’s ruling, saying the plaintiffs lacked standing to challenge a drug they do not take, prescribe, or understand scientifically. Solicitor General Elizabeth B. Prelogar, representing the FDA, wrote:

"The district court countermanded a scientific judgment F.D.A. has maintained across five administrations; nullified the approval of a drug that has been safely used by millions of Americans over more than two decades; and upset reliance interests in a health care system that depends on the availability of mifepristone as an alternative to surgical abortion for women who choose to lawfully terminate their early pregnancies."

• A second emergency application was filed by Danco Laboratories, manufacturer of the branded version of mifepristone. The company’s lawyers said the justices should defer to the FDA’s scientific expertise in determining that the drug is safe and effective. The company wrote: 

“The lack of emergency relief from this court will also harm women, the health care system, the pharmaceutical industry, states’ sovereignty interests and the separation of powers.”

Read more about Judge Macsmaryk’s decision here, and the appeals court's decision here. 

Do you think the Supreme Court should restore nationwide access to the abortion pill? 

-Jamie Epstein