DemDaily: Supreme Court Stays Abortion Pill Ban

April 24, 2023

The US Supreme Court, on Friday night, stayed the sweeping April 7 decision by a Texas judge which suspended the distribution of the medical abortion pill mifepristone.

The 7-2 decision, issued without an opinion, means that the pill -- approved 23 years ago by the Food and Drug Administration (FDA) -- will remain available in states where it is legal while the case continues through the appeals process. "Medical abortion," or the abortion pill, accounts for more than half of pregnancy terminations nationwide.

The justices also rejected, for now, a subsequent opinion by a divided three-judge panel of the Fifth Circuit Court of Appeals which would have severely restricted, but not eliminated, the availability of the pill.

Medical Abortion: The two-pill abortion regimen was first approved by the US Food and Drug Administration (FDA) in 2000. The first drug, Mifepristone, ends a pregnancy and the second, Misoprostol, empties the uterus. Mifepristone is also used to treat women who have suffered miscarriages and postpartum hemorrhaging, as well as a hormone-related condition called Cushing syndrome and as treatment for stomach ulcers.

While the decision by the same Supreme Court that in June 2022 reversed a woman's constitutional right to choose abortion offers hope on its surface, it is more indicative of the significant legal flaws in the initial decision issued by Texas US District Judge Matthew Kacsmaryk.

Kacsmaryk, a conservative Trump appointee with deep ties to the anti-abortion movement, made the unprecedented decision to overturn FDA approval of a drug first authorized over two decades ago. He asserted "legitimate safety concerns" and falsely claimed the drug had resulted in "many deaths and many more severe or life-threatening adverse reactions.”

In his 67-page ruling siding with the conservative Christian Alliance Defending Freedom, which brought the suit, Kacsmaryk called abortion providers “abortionists” and described the use of mifepristone's intent “to kill the unborn human.”

In fact, mifepristone, when taken alongside misoprostol, has been scientifically proven to be extremely safe and is recommended by the American College of Obstetricians and Gynecologists and the World Health Organization, among other health experts. Rates of patient deaths due to the drug are lower than they are for Tylenol, penicillin, or Viagra.

SCOTUS's expedited ruling was made via the court's shadow docket, a legal procedure intended only for emergencies and normally without providing signed opinions or explanation.

Justice Clarence Thomas dissented without opinion, while Samuel Alito, who authored the majority opinion in the Dobbs decision that overturned legal abortion last year, wrote a scathing dissent criticizing his fellow justices for using the shadow docket to preserve access to medication abortion.

Alito also railed against the Biden administration for appealing the Texas decision, while leaving unchallenged a competing injunction by Washington State US District Judge Thomas O. Rice -- issued within hours of Kacsmaryk's ruling last week. Rice's decision, claimed Alito, went too far in ordering the FDA to maintain "the status quo" for access to Mifepristone in the 17 states, along with DC, that had filed that lawsuit.

Notably, Alito's opinion was absent condemnation of Kacsmaryk's legal approach.

On a practical level, forcing the FDA, as the expert federal authority, to pull a drug from the market would violate federal law which requires mandatory procedures laid out by Congress. Mifepristone manufacturer Danco, which joined in DOJ's appeal, called the Texas ruling an “unprecedented judicial assault” on the nation’s regulatory process which could undercut FDA's authority and spark challenges to other approved drugs.

The abortion pill has become the latest target in the war over reproductive rights that has raged since SCOTUS overturned the landmark 1973 Roe v. Wade decision last year -- turning the authority to implement abortion laws over to individual states.

Since then, 13 states have enacted near-total bans on abortions and another five have outlawed them after six to 20 weeks. 23 states have separate laws limiting the provision of medication abortion, although a majority are not currently applicable because providers have stopped offering all abortion care.

The Texas case now returns to the New Orleans-based Fifth Circuit, which will hear oral arguments on May 17. Regardless of the outcome, the losing side is expected to appeal -- ultimately putting it back in the hands of the US Supreme Court.

DemDaily: The New Abortion Battleground 4/11/23
DemDaily: Liberals Prevail in Wisconsin, Chicago 4/5/23

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Kimberly Scott

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Sources: New York Times, Slate, Reuters, Guttmacher Institute

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