The Supreme Court announced Wednesday that it would rule on the availability of a commonly used abortion pill, the first major abortion-related case on its docket since it struck down the constitutional right to the procedure more than a year ago.
The move kicks off a high-stakes fight over the drug mifepristone, which could dramatically reduce access to drugs used in more than half of all pregnancy terminations in the United States. It could also have implications for the regulatory authority of the Food and Drug Administration, which approved the pill more than two decades ago.
The Supreme Court is now in the unusual position of ruling on abortion access even after its conservative majority declared it would leave that issue to the states. Until the court issues a decision, the Food and Drug Administration's approval of the drug remains in effect, delaying the possibility of abruptly limiting access to the drug.
The justices had discussed the case at their Friday conference, the private meeting among the nine.
The Supreme Court did not give a date for an oral argument in announcing it would hear two consolidated cases, FDA v. Alliance for Hippocratic Medicine, No. 23-235, and Danco Laboratories v. Alliance for Hippocratic Medicine, No. 23-236. .
The Biden administration had asked the court to take up cases involving challenges to the pill after a panel of the U.S. Court of Appeals for the Fifth Circuit issued a decision that would limit availability of the drug. The three-judge panel said the pill would remain legal but with significant restrictions on patient access.
In their appeal, Justice Department lawyers described the appeals court ruling as unprecedented in challenging the FDA's expert judgment. Such a decision, they added, “would threaten to seriously disrupt the pharmaceutical industry and prevent the FDA from fulfilling its legal responsibilities.” according to their scientific criteria.”
Alliance Defending Freedom, a conservative Christian legal defense organization that has brought cases for clients who oppose abortion and gay and transgender rights, represents the opponents. In a brief, the group's attorneys argued that the Supreme Court did not need to intervene and called the appeals court's decision a “modest decision” that “simply restores the common-sense safeguards under which millions of women have taken chemical abortion drugs.” ”. “
The complicated showdown over the future of the pill reflects the next big battle by conservative groups to further limit access to abortion.
The case began in November of last year, when a group of anti-abortion medical organizations and some doctors filed a lawsuit alleging that the FDA had illegally approved the drug decades ago.
They filed their challenge in the Panhandle city of Amarillo, Texas, where only one federal judge is hearing civil lawsuits filed there, Judge Matthew J. Kacsmaryk, a Trump appointee who has long opposed abortion.
In April, Judge Kacsmaryk issued a preliminary ruling invalidating the FDA's approval of the drug. Days later, a three-judge panel of the Fifth Circuit, based in New Orleans, overturned part of its ruling, allowing the drug to remain on the market but with restrictions.
The Justice Department was among those to ask the Supreme Court for emergency relief, which temporarily halted any changes to the drug's availability while an appeal moved through lower courts.
A different panel of three Fifth Circuit judges ruled in August that the FDA's original approval of mifepristone should stand, as should the approval of a generic version in 2019.
But it rolled back regulations governing the pill to before 2016. In the years since, the agency made changes that expanded access to the drug. Under those pre-2016 rules, mifepristone must only be prescribed by a doctor and picked up in person. The patients also had to visit the doctor three times during the abortion process.
If the appeals court ruling goes into effect, it would impose significant restrictions on access, preventing patients from obtaining a prescription via telemedicine and receiving it by mail.
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