Supreme Court grants temporary pause on abortion pill ruling

The Supreme Court briefly paused a ruling from a federal court that would severely restrict access to the abortion pill mifepristone.

The short order from Justice Samuel Alito on the court’s emergency “shadow docket” will keep the status quo in place until at least midnight Wednesday while the administration’s emergency request for a stay is considered by the full court.

After the 5th U.S. Circuit Court of Appeals late Wednesday night essentially rolled the clock back to 2016 in imposing new limits on access to medication abortion, the Justice Department and the manufacturer of the brand name version of the pill separately asked the Court to temporarily allow full access to the drug, or to quickly schedule briefing and oral arguments to review the case before the court’s term ends this summer.

The appeals court on Wednesday ruled 2-1 that mifepristone may remain on the market as the federal government’s appeal of a decision from Judge Matthew Kacsmaryk of the Northern District of Texas moves forward. 

The appellate court scheduled oral arguments on the appeal for May 17.

Last week, Kacsmaryk suspended the Food and Drug Administration’s (FDA) 23 year-old approval of mifepristone. The appeals court put that part of his ruling on hold, but left in place another part of the ruling that blocked steps FDA has taken since 2016 to ease access to mifepristone. 

Those changes include increasing the gestational age of when mifepristone can be used to up to 10 weeks of pregnancy, allowing the medication to be mailed to patients, allowing providers other than physicians to prescribe the drug and approving a generic version.

Without the Supreme Court’s intervention, those changes would have taken effect at 1 a.m. Saturday.

At the same time, a judge in Washington state in a separate lawsuit ordered the FDA to leave in place the current mifepristone prescribing and dispensing rules for 17 blue states and D.C.

Judge Thomas Rice said the FDA was prohibited from “altering the status quo” in those states, “irrespective” of what the Fifth Circuit appeals court said.

Legal experts said the direct conflict between the rulings made it more likely that the Supreme Court would intervene.

“We are pleased that the court took the only sensible action here, which was to hit pause on a profoundly dangerous decision that has been widely criticized as unprecedented and wholly unprincipled by experts across the ideological spectrum,” the American Civil Liberties Union said in a Friday statement.

“Today’s ruling is just the first step: Now the courts must put an end to this baseless case — which is part of anti-abortion extremists’ plan to ban abortion nationwide. It threatens access not only to abortion and miscarriage care, but also to a wide swath of critical and life-saving medications. No matter what happens next, we know this fight is far from over.”

—Updated at 4:39 p.m.