Supreme Court keeps status quo in place on abortion pill availability for now, two Justices dissent

(AP Photo/Charlie Neibergall)

With a vote of 7-2 on Friday, the Supreme Court granted a full stay in a case concerning access to the abortion pill mifepristone. Justices Clarence Thomas and Samuel Alito dissented. Alito’s dissent said the Biden administration and the drug manufacturer “are not entitled to a stay because they have not shown that they are likely to suffer irreparable harm in the interim.”

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It’s a win for Biden and pro-abortion advocates, at least for now. The ruling preserves the status quo while DOJ and the pill’s manufacturer appeal a lower court ruling that restricts access to the abortion drug. For now, nothing changes and women have access to purchasing the drug. More than 60% of abortions in the United States are medication abortions, performed with a two-step process using two abortion drugs, mifepristone being one of them.

Mifepristone was approved by the FDA more than 20 years ago. Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas suspended the FDA’s approval, making the drug unavailable for purchase and use. At the time, he said, “The Court does not second-guess FDA’s decision-making lightly. 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.” He added that the agency had faced “significant political pressure” to “increase ‘access’ to chemical abortion.” Within hours, a judge in Washington State ruled oppositely. DOJ appealed Judge Kacsmaryk’s ruling on behalf of the Biden administration. That is how the case went to the Supreme Court.

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Biden wasted no time issuing a statement after the Supreme Court’s ruling was announced Friday evening.

“As a result of the Supreme Court’s stay, mifepristone remains available and approved for safe and effective use while we continue this fight in the courts,” President Joe Biden said in a statement. “I continue to stand by FDA’s evidence-based approval of mifepristone, and my Administration will continue to defend FDA’s independent, expert authority to review, approve, and regulate a wide range of prescription drugs.”

Joe Biden is the most abortion-friendly president the United States has ever had. Kamala Harris tours the country speaking about the administration’s support of unlimited abortion access. Biden named her the abortion czar if you will. She certainly embraces that job more than she does her border czar designation. Priorities.

The 5th Circuit Court of Appeals partially blocked Kacsmaryk’s order by restricting mifepristone from being sent to patients by mail as the case made its way to the Supreme Court. Danco Labs and the Biden administration claim there are wide-ranging consequences if the FDA’s expertise is second-guessed by judges who are legal experts, not medical experts. Opponents of abortion drugs disagree.

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“If allowed to take effect, the lower courts’ orders would thwart FDA’s scientific judgment and undermine widespread reliance in a healthcare system that assumes the availability of mifepristone as an alternative to more burdensome and invasive surgical abortions,” Solicitor General Elizabeth Prelogar told the Supreme Court in a filing this week.

Alliance Defending Freedom, representing opponents to the abortion pill, countered the administration’s concerns amounted to a “sky-is-falling-argument.”

“If this litigation involved any other drug, there would not even be a debate as to whether this Court should intervene mid-litigation stream with extraordinary relief,” attorneys for the Alliance Defending Freedom wrote in a filing to the court.

Access to abortion is one of the most divisive topics in the United States. This subject divides opponents along party lines and also within parties. Many conservatives who are pro-life are not comfortable with a judge – a political appointee – making a ruling against the FDA’s approval of a drug more than twenty years ago.

Some blue state governors and abortion providers have begun stockpiling abortion drugs, just in case the Supreme Court’s ruling goes against the continued availability of mifepristone.

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Nothing changes now while we wait for the case to go back to the 5th Circuit Court of Appeals where it is scheduled for oral arguments on May 17. Then, when the appeals court rules on the merits of the case, that ruling will likely be appealed to the Supreme Court. Friday’s Supreme Court order remains in place until the Supreme Court decides whether or not to hear that appeal. Until then, in states where abortion is legal, women can continue to obtain a medication abortion during the first 10 weeks of pregnancy. Medication abortions are banned or largely banned in over a dozen states.

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John Sexton 7:00 PM | December 06, 2024
David Strom 6:00 PM | December 06, 2024
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