Amid Contradicting Orders, the Supreme Court Protects Abortion Pill Access--for Now

Amid Contradicting Orders, the Supreme Court Protects Abortion Pill Access—for Now
4/14/2023 by Carrie N. Baker
A Friday afternoon order from the Supreme Court preserves the status quo on abortion pills till next week, giving the justices time to study the case.

Updated Friday, April 14, at 3:00 p.m. PT.


There are two different ways to have a medication abortion and end a pregnancy: using two different medicines, mifepristone (pictured) and misoprostol, or using only misoprostol. (Anna Moneymaker / Getty Images)

Dueling federal rulings on the abortion pill mifepristone have set up a Supreme Court fight as early as next week. Judge Thomas O. Rice of the U.S. District Court for the Eastern District of Washington issued an order Thursday afternoon, requiring the FDA to maintain full access to mifepristone in 17 states plus Washington, D.C.—a response to a lawsuit filed by attorneys general of those jurisdictions. The federal order out of Washington state said that the FDA must follow his order, “irrespective” of the Fifth Circuit appeals court—a reference to a separate ruling issued on Wednesday on mifepristone that limits its use up to just seven weeks of pregnancy, which reproductive advocates warn would significantly impair access to abortion.

Last Friday, in a much-awaited decision, Trump-appointed federal judge Matthew Kacsmaryk of the Northern District of Texas ruled that the FDA improperly approved mifepristone, setting off a chain of responses from various other courts—including an initial ruling from Rice just one hour later, issuing an injunction blocking the FDA from “altering the status quo and rights as it relates to the availability of mifepristone.” The Fifth Circuit appeals court ruling upheld much of Kacsmaryk’s ruling. Rice’s ruling on Thursday made it clear the courts’ decisions are in direct contradiction. “No judge in Texas or the Fifth Circuit gets to override what a federal judge in Washington state has decided,” said Washington state’s Attorney General Bob Ferguson. Rice’s latest order applies to Arizona, Colorado, Connecticut, Delaware, District of Columbia, Illinois, Michigan, Nevada, New Mexico, Oregon, Rhode Island, Vermont, Hawaii, Maine, Maryland, Minnesota, Pennsylvania and Washington. Rice declined to apply his ruling nationwide.

The Circuit Court for the Eastern District of Washington also ruled this week the FDA was enjoined from “altering the status quo and rights, as it relates to the availability of mifepristone” as of January 2023—a direct conflict with the Fifth Circuit order staying modifications of the 2000 approval in 2016, 2019, 2021 and 2023. Those modifications include allowing use of the medication through 10 weeks of pregnancy, instead of seven in the original approval; lowering the recommended dosage to decrease side effects; allowing nurses and midwives to administer mifepristone; decreasing the number of appointments required to prescribe the medication from three to one; allowing the medication to be prescribed by telemedicine and mail; and approving a generic version of mifepristone produced by GenBioPro.

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The Department of Justice then also filed an emergency appeal to the Supreme Court. The request went to Samuel Alito, who is assigned to handle emergency matters from the New Orleans-based Fifth U.S. Circuit Court of Appeals. If SCOTUS hadn’t issued its temporary order before midnight on Friday, strict restrictions on mifepristone would have taken effect across the country. In Dobbs v. Jackson Women’s Health Organization, the Supreme Court said that “the authority to regulate abortion must be returned to the people and their elected representatives.” The states before the Washington court have voted to keep abortion legal and accessible. It remains to be seen if the Supreme Court really meant what they said.


https://msmagazine.com/2023/04/14/abortion-pill-washington-supreme-court-fda/