Mifepristone: US Supreme Court temporarily blocks restrictions on most commonly used abortion pill

The US Supreme Court has said it is temporarily keeping in place federal rules for the most commonly used abortion drug, following fears the court would restrict access to the medication. In an order signed by Justice Samuel Alito, the court asked both sides to weigh in by Tuesday over whether lower court rulings restricting the Food and Drug Administration’s approval of the drug, mifepristone, should be allowed to take effect while the case works its way through federal courts. The order suggests the court will decide that issue by late Wednesday. The justices are being asked at this point only to determine what parts of an April 7 ruling by US District Judge Matthew Kacsmaryk in Texas, as modified by an appellate ruling on Wednesday, can be in force while the case continues.

The court finds itself immersed in a new fight involving abortion less than a year after conservative justices reversed Roe v. Wade and allowed more than a dozen states to effectively ban abortion outright. President Joe Biden’s administration and New York-based Danco Laboratories, the maker of the pill, asked the justices to intervene. The type of order issued by the court on Friday, an administrative stay, ordinarily is not an indication of what the justices will do going forward. It was signed by Alito because he handles emergency filings from Texas. Alito also is the author of last year’s opinion overturning Roe v. Wade. The Justice Department and Danco both warned of “regulatory chaos” and harm to women if the high court doesn’t block the lower-court rulings that had the effect of tightening FDA rules under which the drug, mifepristone, can be prescribed and dispensed.

The new limits would have taken effect on Saturday if the court hadn’t acted.

A lawyer for the anti-abortion doctors and medical organisations suing over mifepristone said the justices should reject the drugmaker’s and the administration’s pleas and allow the appeals court-ordered changes to take effect. The Biden administration and Danco now want a more lasting order that would keep the current rules in place as long as the legal fight over mifepristone continues. As a fallback, they asked the court to take up the issue, hear arguments and decide by early summer a legal challenge to mifepristone that anti-abortion doctors and medical organisations filed last year. The court rarely acts so quickly to grant full review of cases before at least one appeals court has thoroughly examined the legal issues involved.

A ruling from the 5th US Circuit Court of Appeals late on Wednesday would prevent the pill, used in the most common abortion method, from being mailed or prescribed without an in-person visit to a doctor. It also would withdraw the Food and Drug Administration’s approval of mifepristone for use beyond the seventh week of pregnancy. The FDA says it’s safe through 10 weeks. Still, the appeals court did not entirely withdraw FDA approval of mifepristone while the fight over it continues. The 5th circuit narrowed an April 7 ruling by US District Judge Matthew Kacsmaryk, whose far-reaching and virtually unprecedented order would have blocked FDA approval of the pill. He gave the administration a week to appeal.

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Mifepristone was approved by the FDA more than two decades ago and is used in combination with a second drug, misoprostol. Adding to the uncertainty, a separate federal judge in Washington on Thursday clarified his own order from last week to make clear that the FDA is not to do anything that might block mifepristone’s availability in 17 Democrat-led states suing to keep it on the market. It’s unclear how the FDA can comply with court orders in both cases, a situation that Prelogar described on Friday as untenable. Use of medication abortion jumped significantly after the FDA’s 2016 rule expansion, according to data gathered by the Guttmacher Institute, a research group that supports abortion rights. In 2017, medication abortion accounted for 39% percent of abortions, but by 2020 it had increased to become the most common method, accounting for 53% of all abortions. Experts have said the use of medication abortion has increased since the court overturned Roe. When the drug was initially approved, the FDA limited its use to up to seven weeks of pregnancy. It also required three in-person office visits: the first to administer mifepristone, the next to administer the second drug, misoprostol, and the third to address any complications. It also required a doctor’s supervision and a reporting system for any serious consequences of the drug. If the appeals court’s action stands, those would again be the terms under which mifepristone could be dispensed for now. At the core of the Texas lawsuit is the allegation that the FDA’s initial approval of mifepristone was flawed because the agency did not adequately review safety risks. Mifepristone has been used by millions of women over the past 23 years. While less drastic than completely overturning the drug’s approval, the latest ruling still represents a stark challenge to the FDA’s authority overseeing how prescription drugs are used in the US. The ruling late on Wednesday overturned multiple decisions made by FDA regulators after years of scientific review. Common side effects with mifepristone include cramping, bleeding, nausea, headache and diarrhea. In rare cases, women can experience excess bleeding that requires surgery to stop. Still, in loosening restrictions on mifepristone, FDA regulators cited “exceedingly low rates of serious adverse events”. More than 5.6 million women in the US had used the drug as of June 2022, according to the FDA. In that period, the agency received 4,200 reports of complications in women, or less than one tenth of 1% of women who took the drug.