Supreme Court Leaves Abortion Drug On The Market, For Now

Mifepristone, a common abortion-inducing drug, will remain on the market without additional restrictions while a legal challenge proceeds, the U.S. Supreme Court ruled Friday.

The court ruled 7-2 to stay the lower court’s ruling, with Justice Clarence Thomas and Justice Samuel Alito dissenting.

The fate of mifepristone has been up in the air for almost two weeks, after a federal judge in Amarillo ruled that the Food and Drug Administration had improperly approved the medication more than 20 years ago.

In his original ruling, U.S. District Judge Matthew Kacsmaryk, a Trump-appointed judge who was active in anti-abortion circles before joining the bench, took the unprecedented step of suspending the drug’s approval, resurfacing centuries-old legal theories in the process.

The 5th U.S. Circuit Court of Appeals offered a compromise — while the appeal was moving through the system, the medication would remain on the market with additional restrictions.

After temporarily blocking the 5th Circuit’s ruling, the U.S. Supreme Court agreed Friday to keep all of these potential changes to mifepristone’s approval on ice until the case can be considered more fully.

The case will now return to the 5th Circuit, which will hear arguments in mid-May.

Friday’s ruling allows mifepristone to remain on the market, with the same restrictions that were in place before Kacsmaryk’s ruling. It does not change the legal status of mifepristone in Texas, where all abortions — including medication abortions — are prohibited, except to save the life of a pregnant patient.

Mifepristone, when taken alongside misoprostol, is the most common way Americans terminate their pregnancies. Numerous studies, as well as 23 years of use on the market, have shown it to be safe and effective. But with more than a dozen states, including Texas, now banning abortion, the pills have emerged as a focal point for anti-abortion activists.

In court last month, Erik Baptist, senior counsel for the Alliance Defending Freedom, which brought the lawsuit, said removing abortion-inducing drugs from the market “helps stop the federal government from illegally subverting these 14 states’ laws and regulations designed to protect their people from dangerous chemical abortion drugs.”

Even as this case moves further afield from Texas, the fight to ban abortion medication rages on within the Lone Star state. On Friday, Attorney General Ken Paxton announced he had signed on to a letter reminding a telehealth company of their obligations to not prescribe abortion-inducing drugs that violate state laws.


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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/04/19/supreme-court-abortion-drug-fda/.

The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.

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