Waiting for the Supreme Court to Revisit Mifepristone: Implications for Medication Abortion in the United States

Last week, the 5th Circuit Court of Appeals blocked Kacsmaryk’s ban, but upheld restrictions on the drug that haven’t been in place since 2016, when the FDA started loosening access to mifepristone. The pill can be taken only through the first seven weeks of pregnancy, according to a three-judge panel. The FDA is at risk of losing its authority to assess and approve politically controversial drugs because of the rulings.

Unless the court intervenes, the temporary stay on status-quo access will be gone at midnight today. If the stay expired, the 5th US Circuit Court of Appeals would impose a number of restrictions, including prohibiting the use of mail for the distribution of pills.

In a statement, Skye Perryman with the legal advocacy group Democracy Forward Foundation and one of the lawyers in the case, said the outcome could have larger significance for other medications.

“If the far-right external interest groups interfere with drug availability in the country without the legal and regulatory protections provided by Congress, this could have wide-ranging industry ramifications,” he said. Few companies would be given incentive to develop and bring drugs to market if this were to be the case.

The Justice Department, acting on behalf of the FDA, asked the Supreme Court to keep the pill available. On April 14, Justice Samuel Alito put a hold on the rulings until the high court could consider the issue.

Drugs are either removed from the market because of risks to patients or because of low demand. The FDA approval of a drug has never been suspended by a court.

A future administration could always reverse course if it chose to use the FDA’s discretion. “I don’t see any real stability for medication abortion in the short term, potentially even the long term,” Whelan says.