WASHINGTON — The Supreme Court took a first step on Monday to consider anti-abortion challenges to medication that has been commonly used to end early pregnancies for 25 years.
The justices moved quickly to put on hold an appeals court ruling that would block the mailing of abortion pills nationwide. Justice Samuel A. Alito issued a temporary “administrative stay” until May 11.
Three years ago, the court blocked a similar challenge to abortion pills, ruling that anti-abortion doctors had no grounds to sue over medication they did not use or prescribe.
Last year, Louisiana’s state lawyers sued and argued their state ban on abortions is thwarted if women can receive abortion pills through the mail after consulting a doctor online.
They questioned the federal regulation that permits doctors to prescribe the medication without seeing patients in person.
On Friday evening, the conservative U.S. 5th Circuit Court of Appeals in New Orleans jolted abortion rights advocates, first by ruling this claim is likely to succeed and then by putting their order into effect immediately.
Judge Kyle Duncan, a President Trump appointee, said the Food and Drug Administration had “failed to adequately study whether remotely prescribing mifepristone is safe.”
Moreover, women may suffer “irreparable harm” if these mail-order prescriptions are allowed to continue, he said.
If upheld, the order would go far beyond Louisiana and make it illegal for women in California and other states to obtain the pills through a pharmacy or by mail if they did not see a doctor first.
The legal dispute may put the Trump administration in an uncomfortable spot. In response to the abortion critics, the FDA agreed to review the safety of prescribing these commonly used pills without a required trip to a doctor’s office.
Its review is not likely to be completed until after the November elections.
The 5th Circuit judges said they were not prepared to wait for the outcome of that review.
On Saturday, two makers of mifepristone — Danco Laboratories and GenBioPro — filed emergency appeals asking the justices to block the 5th Circuit’s order.
“Never before has a federal court” rejected a long-standing drug approval by the FDA, they said, and restricted its distribution based on claims the agency had rejected.
The justices asked for a response from Louisiana by Thursday.
Mifepristone was approved in 2000 as a safe and effective way to an early pregnancy. It is typically used in combination with a second drug — misoprostol — which is not affected by the court’s decision.
If mifepristone becomes unavailable, women may use misoprostol alone, abortion rights advocates say.
In recent years, the majority of abortions in this country result from the use of medication.
Alito is responsible for emergency appeals from the 5th Circuit, and Monday’s order does not signal what the court will decide.
“This ruling is not final — keep watching,” said Nancy Northup, president of the Center for Reproductive Rights. “Getting abortion pills through telehealth has been a lifeline for women since Roe v. Wade was overturned. Louisiana’s attempt to restrict access is political and not based in science or medicine. Americans deserve access to this critical drug that has been FDA approved for 25 years.”
Carol Tobias, president of National Right to Life, agreed the court’s order did not resolve anything.
“It is a temporary procedural step that leaves unresolved the very real concerns about the safety of these drugs and the decision under the Biden administration’s FDA to recklessly remove longstanding safeguards,” she said.
California Atty. Gen. Rob Bonta joined with 21 other state attorneys in urging the court to block the 5th Circuit’s decision.
“Telehealth has made it easier for women — especially in rural, low-income, and underserved communities — to access mifepristone and obtain reproductive health care,” he said. “We should be guided by science, not politics. The in-person dispensing requirement was eliminated because it was medically unnecessary, and there is still no basis for reinstating it.”
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