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Supreme Court temporarily extends access to abortion pill until Friday

The decision is provisional, and the justices will have to issue a new ruling on whether to allow restrictions on mifepristone to take effect while a legal challenge to the medication’s FDA approval continues

An abortion-rights activist holds a banner outside the U.S. Supreme Court
An activist in favor of abortion, this Wednesday at the gates of the Supreme Court in Washington.Manuel Balce Ceneta (AP)
Iker Seisdedos

The Supreme Court temporarily maintained women’s unrestricted access to the abortion pill mifepristone until Friday at midnight. The justices extended a deadline that expired this Wednesday, and they are expected to make a more permanent decision in these two extra days.

The matter reached the nation’s highest court last week thanks to an appeal by the Joe Biden administration and Danco Laboratories, the New York-based manufacturers of Mifeprex, the most popular brand name of mifepristone. Both asked the court to intervene to avoid “regulatory chaos” after Matthew Kacsmaryk, a conservative federal judge in Texas, issued a ruling on April 7 that would revoke the medication’s Food and Drug Administration approval. Kacsmaryk gave a seven-day timeline for the ban to take effect.

The Department of Justice used that deadline to appeal the judge’s decision. Kacsmaryk ruled in favor of a group of abortion opponents — called Alliance for Hippocratic Medicine —, which sought to roll back FDA approval of mifepristone, which is used in almost half of medical abortions across the country. The FDA approved the use of the drug 23 years ago, and according to Alliance for Hippocratic Medicine, they did so without sufficient safeguards.

Also on April 7, across the country, a Washington state judge issued a parallel ruling, contradicting Kacsmaryk’s decision by ordering the FDA to preserve access in the 17 states whose Democratic attorneys general, fearing the worst, had filed a preemptive lawsuit to protect women’s access to the medication. The outcome of both rulings sowed considerable confusion among doctors, patients, pharmaceutical companies, and pro- and anti-abortion activists.

The appeal to the Texas decision ended up before the Fifth Circuit Court of Appeals, which adopted three precautionary measures while deciding on the merits of the case: it prohibited its use after the seventh week of pregnancy, and vetoed its administration by mail or without a prior visit to a doctor.

The FDA approved in 2000 the administration of mifepristone by prescription for the first seven weeks from the time of conception. In 2016, the limit became 10 weeks. In 2021, the Biden administration solidified access to the drug via mail and without having to see a physician. The federal agency, in its website, says that it “does not recommend buying mifepristone over the Internet,” despite the fact that many women obtain it that way, from senders in Russia or India.

Faced with these restrictions, which would have gone into effect last Saturday, the Department of Justice and the pharmaceutical company Danco Laboratories appealed to the Supreme Court. The court of appeals for the Fifth Circuit reports directly to Justice Samuel Alito, one of the most right-wing members of the Supreme Court, which has six conservatives and three liberals. In an order issued last Friday by Alito, the court put the restrictions on hold through Wednesday to give the court time to consider the emergency appeal. Then, on Wednesday, in another order signed by Alito, the court further delayed its final decision. Alito provided no explanation for why the court put off a more lasting ruling.

It so happens that Alito wrote the ruling that last year that overturned Roe v. Wade, which in 1973 gave federal protection to the right to abortion. When that precedent was overturned, the power to regulate abortions was left in the hands of the states. A total of 18 states have banned or severely restricted this right. In several others, laws have already been challenged and are awaiting rulings from the respective state Supreme Courts.

At the heart of the Texas lawsuit is the allegation that the FDA’s initial approval of mifepristone was flawed because the agency failed to adequately review safety risks. Mifepristone has been used by 5.2 million women over the past 23 years, according to agency estimates. The most common side effects of mifepristone include cramping, bleeding, nausea, headache and diarrhea. On very rare occasions, women may experience excessive bleeding requiring surgery to stop it.

Despite what the lawsuit in Texas claims, about a hundred scientific studies conducted over the last two decades have agreed that the pills are a safe method of terminating a pregnancy.

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