Brett Kavanaugh Can Now Decide the Future of Abortion Pills

Update: On Friday, Supreme Court Associate Justice Samuel Alito issued an order suspending any changes to mifepristone’s availability until 11:59 p.m. Eastern Time on Wednesday. He also asked for any response to the request by Tuesday afternoon.

Less than a year after it overturned Roe v. Wade, the Supreme Court is once again being asked to referee the nation’s abortion wars.

On Friday, the Biden administration asked the Supreme Court to pause a ruling, made last week by a Texas-based judge, that would suspend the Food and Drug Administration’s approval of mifepristone, a common, effective, and safe abortion pill. Although the U.S. Court of Appeals for the 5th Circuit ruled late Wednesday that mifepristone couldn’t be completely yanked from the market, the federal appeals court agreed to implement heavy restrictions on the pill.

Under those restrictions, mifepristone must be obtained in person. It would also be re-labeled to only be used up until seven weeks of pregnancy, rather than 10 (though providers could still go “off-label” and use it later on in pregnancy).

In its request to the Supreme Court, the Biden administration called the orders “unprecedented” and accused the judges of “countermanding FDA’s scientific judgment and unleashing regulatory chaos by suspending the existing FDA-approved conditions of use for mifepristone.”

“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 FDA’s ability to implement its statutory authority,” the request read.

The manufacturer of mifepristone, Danco Laboratories, has also asked the Supreme Court to pause the rulings. In its request to the court Friday, Danco pointed out that a Washington-based judge recently ordered the FDA to not change its approach to mifepristone—which completely contradicts the Texas ruling.

These competing court orders, Danco said, have created “an untenable limbo, for Danco, for providers, for women, and for health care systems all trying to navigate these uncharted waters.” 

Pharmaceutical companies have also decried the Texas order, arguing that if a court can undermine the FDA’s approval process for one drug, every other drug is at risk.

The FDA first approved mifepristone for use in medication abortions in 2000. By the overturning of Roe, medication abortions made up more than half of all abortions in the United States. More than 100 studies have also concluded that using mifepristone is a safe way to end a pregnancy (it is also used to manage miscarriages).

Still, mifepristone’s future is far from assured, particularly if the 6-3 conservative majority at the Supreme Court gets involved. If the court doesn’t act, the restrictions on mifepristone are set to take effect at 1 a.m. Eastern Time on Saturday morning.

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