Abortion Contortions

The fight over mifepristone, one of two pills typically used in combination to terminate a pregnancy, has reached a fever pitch with a Texas District Judge’s suspension of FDA approval of abortion medication mifepristone. 

The Justice Department moved quickly to appeal the Texas decision last week, requesting an emergency stay. On Wednesday, the Fifth Circuit Court of Appeals ruled to allow partial access to mifepristone while the case is being appealed while also introducing limitations on how the drug can be dispensed, including prohibiting mail delivery and restricting the use of the pill to the first seven weeks of pregnancy. 

In response, the DOJ on Friday asked the Supreme Court to preserve full access to the drug and pause court-ordered restrictions that are set to take effect. The administration suggested the court could alternatively grant review and hear arguments on an expedited basis. Danco Laboratories LLC, the drug’s primary maker, filed a similar request with the court earlier in the day. 

In response to both filings, Justice Samuel Alito, who wrote the court’s 2022 decision overturning Roe, temporarily froze District Judge Kacsmaryk’s ruling Friday afternoon, preserving access to mifepristone for five days to allow the Supreme Court time to review the administration and Danco’s emergency appeals.

On Thursday, District Judge Tom Rice in Washington state doubled down on his ruling asserting mifepristone must remain available in 17 states and the District of Columbia. In the most recent ruling, he found the FDA cannot roll back access to the abortion pill in 18 jurisdictions, regardless of conflicting orders issued in other federal courts, and said that the Biden administration “must” follow his order. 

With the future of mifepristone far from certain, Vice President Kamala Harris convened a meeting of the Task Force on Reproductive Health Access on Wednesday to strongly condemn the federal appeals court ruling and announced several new initiatives to support abortion access.