Abortion pill wins reprieve at Supreme Court
What happened
The use of the abortion pill mifepristone will remain legal through 10 weeks of pregnancy in most states, after the Supreme Court issued a stay blocking lower-court decisions that would have limited access to the medication. Used in over half of abortions in the U.S., as well as in the treatment of miscarriages, mifepristone has been taken safely by millions of Americans. But earlier this month, Trump-appointed judge Matthew J. Kacsmaryk ruled that the process by which the Food and Drug Administration initially approved the drug in 2000 was flawed and that the drug should be recalled. The 5th U.S. Circuit Court of Appeals temporarily blocked that ruling but imposed some restrictions on the drug’s use. If the Supreme Court hadn’t ruled to allow access during the appeal process, the pill would have been available for use up to only seven weeks of pregnancy in certain states, while distribution by mail would have been illegal. The case now returns to the 5th Circuit, which will hear oral arguments in May.
An Obama-appointed judge in Washington state issued a contradictory ruling in a separate case filed by Democratic attorneys general in 17 states and Washington, D.C., blocking the FDA from limiting access to mifepristone in those states. The competing rulings mean the issue will almost certainly reach the Supreme Court again next year. President Biden said Republican attempts to curtail abortion access through the courts were likely to continue. “The American people must continue to use their vote as their voice,” he said, “and elect a Congress who will pass a law restoring the protections of Roe v. Wade.”
What the columnists said
The stakes in this case aren’t just about abortion, said Kimberly Wehle in The Bulwark. Kacsmaryk’s intemperate and poorly argued ruling also “strikes at the heart of the FDA’s power to regulate drugs.” Congress tasks the agency with making regulatory and policy decisions, and it’s “supposed to get deference” because of its “specialized expertise.” If the ruling isn’t overturned entirely, there could be severe repercussions for how other drugs are regulated.
For now, the Supreme Court has bought abortion patients time, said Jennifer Rubin in The Washington Post. But we can’t ignore the “outrageous” dissent appended by Justice Samuel Alito, which was “so lacking in judicial reason and tone” that experts I spoke with “were practically slack-jawed.” Alito said a stay would be unnecessary because the Biden administration would have ignored the court ruling, a shocking claim for which there is no evidence. His dissent demonstrated “that he does not care one whit about the women affected if the drug were suddenly made unavailable.”
Don’t “read too much into” this narrow ruling, said Mary Ziegler in The Atlantic. The Supreme Court isn’t “any less hostile to abortion”—it’s just that this case was too flimsy for even these conservative justices to let stand. Even if they eventually overturn Kascmaryk’s ruling entirely, another, better case will soon come along. Kacsmaryk and the 5th Circuit have “prepared the way” to use the 1873 Comstock Act to justify “a nationwide abortion ban.” Expect a case like that in the coming months.