Supreme Court Puts on Hold Ruling That Restricts Access to Abortion Pill Mifepristone

Mifepristone (Mifeprex) and Misoprostol, the two drugs used in a chemical abortion, are seen at the Women's Reproductive Clinic, in Santa Teresa, N.M., on June 17, 2022. Robyn Beck/AFP/Getty Images

The U.S. Supreme Court has put on hold a lower court’s order that suspends the federal approval of mifepristone, the nation’s most widely used abortion drug.

In a brief order (pdf) issued Friday by Justice Samuel Alito, the high court halted the enforcement of a decision issued earlier this month by U.S. District Court Judge Matthew Kacsmaryk, asking both sides of the dispute to file their responses by the noon of April 18 over whether the access to mifepristone should be restricted while the legal battle proceeds.

Alito’s order implies that the court will weigh in on that specific issue by the end of April 19. This type of order, called administrative stay, usually doesn’t reflect the court’s final disposition of the case.

The move came as both the Biden administration and Danco Laboratories, a New York City-based company that makes and sells mifepristone under the brand name Mifeprex, were poised to ask the Supreme Court for an emergency order to stop the lower court ruling from taking effect.

In a ruling late Wednesday, the 5th U.S. Circuit Court of Appeals in New Orleans partially overturned Kacsmaryk’s decision that had completely blocked the U.S. Food and Drug Administration’s (FDA) approval of mifepristone, but blocked a series of steps the federal agency took in recent years to expand access to the drug, including allowing it to be dispensed through the mail and prescribed by health care providers who are not doctors.

Mifepristone received FDA approval in 2000 alongside another drug called misoprostol. In a typical chemical abortion, the pregnant woman first takes mifepristone to block the hormone progesterone and thereby deprive the unborn child of nutrients needed to stay alive, and then takes misoprostol to induce labor to expel the dead child.

The lawsuit, filed by conservative advocacy group Alliance for Hippocratic Medicine, accused the FDA of illegally approving mifepristone and should be held accountable.

Citing testimonies from doctors who claimed to have treated dozens of women suffering life-threatening adverse effects from mifepristone, the Alliance alleged that the FDA had failed to study the safety of those drugs under the labeled conditions of use, disregarded the potential negative effects the hormone-blocking regimen has on pregnant girls, and removed the few safeguards that were in place.

Kacsmaryk, who was appointed to the Northern District of Texas by President Donald Trump in 2019, sided with the Alliance.

“The Court does not second-guess FDA’s decision-making lightly,” he wrote in the decision (pdf). “But here, FDA acquiesced on its legitimate safety concerns—in violation of its statutory duty—based on plainly unsound reasoning and studies that did not support its conclusions.”

Meanwhile, an attorney for the federal government argued that the Alliance lacks standing and that it “provided no basis for second-guessing FDA’s scientific judgment.”

“If allowed to take effect, the court’s order would thwart FDA’s scientific judgment and severely harm women, particularly those for whom mifepristone is a medical or practical necessity. This harm would be felt throughout the country, given that mifepristone has lawful uses in every State,” the government lawyers said in appeals court filings.

Danco also argued that restricting access to its sole product would cause “irreparable harm” to the company.

The combination of mifepristone and misoprostol is the most common method to end pregnancies in the United States and accounts for about half of all abortions nationwide, according to a 2022 survey by pro-abortion research group the Guttmacher Institute.