Supreme Court Temporarily Preserves Access to Abortion Pill  

Bottles of abortion pills mifepristone, left, and misoprostol, right, at a clinic in Des M
AP Photo/Charlie Neibergall

The Supreme Court issued an administrative stay on Friday that preserves access to the abortion pill while litigation plays out in lower courts.

Under President Bill Clinton, the Food and Drug Administration (FDA) approved mifepristone in 2000, a drug that causes abortion. However, the FDA removed several safeguards limiting the pill’s use in 2016 and 2019.

The abortion pill has made its way onto the Supreme Court’s radar after President Joe Biden’s FDA allowed the pill to be sent through the mail in 2021, leading to federal lawsuits initiated by pro-life organizations.

As Breitbart News’ senior legal contributor Ken Klukowski detailed:

This month, Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas handed down a 67-page decision that the FDA’s decisions were illegal under federal law, issuing a nationwide injunction blocking the abortion pill.

Days later, the U.S. Court of Appeals for the Fifth Circuit partially granted a stay requested by the Biden Justice Department. The court’s 42-page opinion temporarily put on hold the part of the decision about the 2000 FDA decision because it might be past the deadline for bringing legal challenges, though added that it was a “close call” and that the court might go the opposite direction after receiving additional legal arguments. But the appellate court rejected a stay on anything from 2016 to the present, affirming the trial court’s injunction.

All of those items were for a stay pending appeal. The appeals court will now receiving full legal briefing and hear oral arguments on those issues to make a final decision.

However, Biden’s Department of Justice (DOJ) asked the Supreme Court to grant a stay of the lower court decisions. Last week, Justice Samuel Alito issued an administrative stay for five days while the plaintiff in one of the cases filed papers opposing a stay.

On Friday, the Supreme Court issued a stay “pending disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought.”

Justice Clarence Thomas would have denied the DOJ’s application for stays, and Alito wrote a dissent that criticized the FDA for not acting “equitably.”

“As narrowed by the Court of Appeals, the stay that would apply if we failed to broaden it would not remove mifepristone from the market,” Alito wrote. “It would simply restore the circumstances that existed (and that the Government defended) from 2000 to 2016 under three Presidential administrations.”

Alito added:

Our granting of a stay of a lower-court decision is an equitable remedy. It should not be given if the moving party has not acted equitably, and that is the situation here. The Food and Drug Administration (FDA) has engaged in what has become the practice of “leverag[ing]” district court injunctions “as a basis” for implementing a desired policy while evading both necessary agency procedures and judicial review.

Erik Baptist, senior counsel at Alliance Defending Freedom, one of the pro-life law firms who filed the lawsuit on behalf of doctors and medical groups, said the Court’s decision is “common practice” and his firm anticipates “a final outcome in this case that will hold the FDA accountable.”

Baptist said:

As is common practice, the Supreme Court has decided to maintain the status quo that existed prior to our lawsuit while our challenge to the FDA’s illegal approval of chemical abortion drugs and its removal of critical safeguards for those drugs moves forward. Our case seeking to put women’s health above politics continues on an expedited basis in the lower courts. The FDA must answer for the damage it has caused to the health of countless women and girls and the rule of law by failing to study how dangerous the chemical abortion drug regimen is and unlawfully removing every meaningful safeguard, even allowing for mail-order abortions. We look forward to a final outcome in this case that will hold the FDA accountable.

The appeal in Fifth Circuit has been fast-tracked, with oral arguments set to begin on May 17.

The applications are Danco Laboratories v. Alliance for Hippocratic Medicine, No. 22A901, and FDA v. Alliance for Hippocratic Medicine, No. 22A902 in the Supreme Court of the United States.

Jordan Dixon-Hamilton is a reporter for Breitbart News. Write to him at or follow him on Twitter.


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