The Supreme Court decided Friday evening to preserve access to the abortion pill mifepristone while a lower court battle plays out, but long-term access to the pill is still not assured.
The decision resolved uncertainty around mifepristone’s current status that resulted from conflicting court rulings in recent weeks.
Earlier this month, a Texas judge granted a request from anti-abortion groups to suspend access to mifepristone, despite the fact that regulators had approved it for use more than 20 years ago. The Biden Administration sought to keep abortion pills legal while they appealed the Texas decision.
Friday’s ruling allows access to the pill until lower courts reach a decision.
In a statement, Governor Kathy Hochul supported the news and thanked the Biden Administration and the Department of Justice for “working swiftly to stop the politicized effort to block a form of medication abortion that was approved more than 20 years ago.”
"Under my watch, abortion will always be protected and available in New York, and I will continue to ensure that our state remains a safe harbor for those in need of reproductive health care,” she said.
The court issued a brief, unsigned decision and Justices Samuel Alito and Clarence Thomas dissented.
From Roe v Wade to mifepristone
The Supreme Court complicated the national abortion landscape when it overturned Roe v. Wade last year. In that decision, the court determined that there is no national constitutional right to abortion and left the issue up to each state to regulate. Some states moved quickly to further restrict abortion access, while others sought to protect it. In New York, lawmakers began the multi-year process of enshrining abortion rights in the state’s constitution.
But pills like mifepristone could still be sent across the country by mail, making them a target for abortion opponents. The case that led to today’s Supreme Court ruling has demonstrated how strategic litigation can impact abortion access across state lines.
In a filing submitted to the Supreme Court last week, attorneys general from New York, New Jersey and other states where abortion is legal argued that blocking access to mifepristone would undermine their sovereignty as they seek to “safeguard access to abortion for their residents.”
The decision comes after multiple conflicting court rulings on the medication threw the drug’s status into question in recent weeks. In anticipation of restrictions on mifepristone, Gov. Kathy Hochul announced a plan earlier this month to stockpile another abortion medication, misoprostol.
The FDA first approved mifepristone to be used in conjunction with misoprostol as part of a two-pill regimen for an abortion in 2000. Although the pills have been proven to be more effective when used together, misoprostol can also be used to end a pregnancy on its own. Reproductive health providers, including Planned Parenthood of Greater New York, have been preparing to change their protocols to a misoprostol-only regimen if necessary.
How we got here
The Supreme Court ruling originated with a Texas case in which an anti-abortion group known as the Alliance for Hippocratic Medicine challenged the U.S. Food and Drug Administration’s longstanding approval for mifepristone. The group also called into question more recent actions by the FDA that made abortion pills easier to access, such as a decision allowing the pills to be sent by mail rather than requiring that they be picked up in person.
On April 7, Judge Matthew Kacsmaryk of the Northern District of Texas, issued a preliminary ruling in that case suspending FDA approval for mifepristone while the arguments proceeded in court. He delayed his ruling from taking effect for seven days.
From there, things escalated quickly.
A federal judge in Washington state issued a conflicting ruling in a separate case the same day that blocked the FDA from rolling back access to mifepristone in certain states (New York and New Jersey were not among them).
That evening, the U.S. Department of Justice appealed the Texas ruling to the Fifth Circuit Court of Appeals. In a middle-of-the-night decision, the appeals court ruled that mifepristone could remain on the market – but reinstated restrictions on the drug that had not been in place for years.
In response, the U.S. Department of Justice petitioned the Supreme Court to take up the case and block any restrictions on mifepristone from taking effect.
What this means for abortion access ... and the FDA
Beyond simply threatening access to mifepristone, legal observers say the Texas case has served to cast doubt on the authority of the FDA.
“The judges who have weighed in have really put themselves in the shoes of the experts, inappropriately,” said Katharine Bodde, assistant policy director for the New York Civil Liberties Union. “We are in unprecedented territory.”
Bodde noted that if FDA authorization for mifepristone is permanently revoked, the makers of the drug could submit applications for its approval again and start the process from scratch. But she said it is “by no means a quick process.”
For now, litigation around mifepristone is ongoing. Earlier this week, GenBioPro, a company that makes a generic version of pill, sued the FDA to block it from enforcing restrictions on mifepristone. The company argued that it was entitled to due process protections when it received approval to market its version of mifepristone in the U.S. in 2019.
