By Andrew Chung
(Reuters) – The U.S. Supreme Court, which in 2022 ended its recognition of a constitutional right to abortion, on Wednesday agreed to hear a bid by President Joe Biden’s administration to preserve broad access to the abortion pill, setting up another major ruling on reproductive rights set to come in a presidential election year.
The justices took up the administration’s appeal of an August decision by the New Orleans-based 5th U.S. Circuit Court of Appeals that would curb how the pill, called mifepristone, is delivered and distributed, barring telemedicine prescriptions and shipments by mail of the drug. The high court also agreed to hear an appeal by the drug’s manufacturer, Danco Laboratories.
The 5th Circuit’s decision is currently on hold pending the outcome of the appeal at the Supreme Court in a challenge to the pill brought in Texas by anti-abortion groups and doctors. The justices are expected to hear arguments in the coming months and issue a decision by the end of June in the middle of a heated presidential race.
Mifepristone is taken with another drug called misoprostol to perform medication abortion, which accounts for more than half of all U.S. abortions. The U.S. Food and Drug Administration (FDA), which gave regulatory approval to mifepristone in 2000, has called the drug safe and effective as demonstrated over its decades of use by millions of American women, with adverse effects on them exceedingly rare.
The Justice Department in its filing to the Supreme Court said that allowing the 5th Circuit’s restrictions to take effect would have “damaging consequences for women seeking lawful abortions and a healthcare system that relies on the availability of the drug under the current conditions of use.”
The case could put at risk the authority of the FDA, the federal agency that signs off on the safety of food products, drugs and medical devices.
The 5th Circuit’s decision partially sided with the plaintiffs. It did not go as far as a prior decision in the case by U.S. Judge Matthew Kacsmaryk in Amarillo that would have suspended FDA approval of mifepristone and effectively pulled it off the market.
In April, the Supreme Court granted emergency requests by the Justice Department and Danco to put on hold Kacsmaryk’s order while litigation continued.
Biden’s administration is seeking to defend mifepristone in the face of mounting abortion bans and restrictions enacted by Republican-led states since the Supreme Court in June 2022 overturned the landmark 1973 Roe v. Wade decision that had legalized the procedure nationwide.
Abortion rights are a divisive issue in the 2024 presidential race, as Biden, a Democrat who champions abortion rights, campaigns for re-election. Former President Donald Trump, the frontrunner for the Republican nomination to challenge the Biden, appointed three members of the Supreme Court’s 6-3 conservative majority – all three of whom voted for overturn Roe in the 2022 decision.
Besides medication abortion, mifepristone has other uses including management of miscarriages.
Anti-abortion groups led by the Alliance for Hippocratic Medicine and four anti-abortion doctors sued the FDA in 2022. The plaintiffs, represented by the conservative religious rights group Alliance Defending Freedom, have argued that the FDA’s approval of mifepristone was unlawful and have said the agency subsequently removed safeguards on what they call a dangerous drug.
The 5th Circuit’s decision rolled back FDA actions that had made the drug easier to access in recent years, including a 2021 action during the Biden administration allowing the pill to be prescribed remotely and sent by mail, instead of requiring an in-person doctor visit, and a 2016 action under Democratic former President Barack Obama to allow mifepristone to be used to 10 weeks of pregnancy, up from seven.
Since last year’s Supreme Court decision, at least 14 U.S. states have put in place outright abortion bans while many others prohibit abortion after a certain duration of pregnancy.
(Reporting by Andrew Chung in New York; Editing by Franklin Paul and Will Dunham)
