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Supreme Court allows abortion pill to stay on the market for now

The Justice Department and Danco Laboratories, which makes the brand version of mifepristone, Mifeprex, had asked the court to step in immediately.
/ Source: NBC News

The Supreme Court will allow the most commonly used abortion pill in the U.S. to remain widely available.

The high court on Friday blocked in full a decision by Texas-based U.S. District Judge Matthew Kacsmaryk on April 7 that invalidated the Food and Drug Administration’s longtime approval of mifepristone, handing a sweeping victory to abortion opponents.

The Justice Department and Danco Laboratories, which makes the name brand version of mifepristone, Mifeprex, had asked the justices to step in after a federal appeals court kept in place a number of provisions in Kacsmaryk’s order that would have imperiled widespread access to the drug, including restrictions on distributing the pill to patients by mail.

The court, which has a 6-3 conservative majority, issued a temporary stay of Kacsmaryk’s ruling last Friday, which was extended for two days Wednesday while the justices considered what steps to take.

The decision means women can still obtain mifepristone by mail, use it at home, and use it up to 10 weeks into a pregnancy, as litigation continues in the lower court. The generic version of the drug, made by GenBioPro, will also continue to be available.

The case marked a significant test for the same conservative majority that last summer overturned the landmark Roe v. Wade decision, that had ensured for 50 years a constitutional right to an abortion. 

The abortion pill dispute involves different legal issues about the FDA’s process for approving drugs, but the case raised questions over the court’s pledge last year that it would leave abortion policy to the states and the federal government.

A federal judge in Washington state added a further wrinkle when he issued a preliminary injunction in a different case barring the FDA from “altering the status quo and rights as it relates to the availability of mifepristone.”

That ruling, also issued April 7, applies only to 17 liberal-leaning states and Washington, D.C., filed a lawsuit in February challenging the FDA’s regulations over the drug.

The 5th U.S. Circuit Court of Appeals last week had narrowed the scope of Kacsmaryk’s broader decision by declining to suspend the FDA’S original approval of mifepristone, as Kacsmaryk had done.

But in upholding other portions of his decision that addressed several steps the FDA undertook in recent years that made the pill easier to obtain, the Justice Department and Danco argued that there would still be enormous disruption to the availability of the pill.

The current labeling of pills on the market wouldn’t match the restrictions imposed by the 5th Circuit, which would render all pills on the market illegal, DOJ and Danco argued.

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