Biden administration asks US Supreme Court to restore availability of abortion drug mifepristone

The Biden administration Friday filed an emergency application with the US Supreme Court to restore the broad availability of the abortion medication mifepristone while legal challenges regarding access to the drug are resolved. The administration asked the court to stay the entirety of Texas federal Judge Matthew Kacsmaryk’s ruling from earlier this month that suspended the US Food and Drug Administration’s (FDA) approval of mifepristone.

The Biden administration requested Supreme Court ultimately stay Kacsmaryk’s ruling and “maintain the status quo” until the orderly completion of appellate review of the case. The Biden administration stated that “in no way should they take effect without further merits review.”

The Biden administration called the Kacsmaryk’s ruling “unprecedented…countermanding FDA’s scientific judgement and unleashing regulatory chaos.” According to the brief, the Kacsmaryk’s order undermines the purpose of the federal rule invoked to suspend FDA approval of the drug. By essentially nullifying the FDA’s approval and prohibiting mifepristone from being introduced into interstate commerce, the Biden administration argues the order “upend[s] the status quo based on the court’s deeply misguided assessment of mifepristone’s safety.”

The Biden administration’s brief also said that by taking its own “extraordinary step” to grant relief to plaintiffs, Kacsmaryk allowed relief where relief was not due. This is because the plaintiffs waited to file suit until over 20 years after the FDA approved mifepristone and delayed more than three years before petitioning the FDA to reconsider its requirements for the drug’s approval.

The Biden administration’s emergency request is just one of many since Kacsmaryk’s April 7 ruling restricting the abortion drug. The Department of Justice (DOJ) Thursday announced it is seeking emergency relief from the court as well. Danco Laboratories, which manufactures the branded version of mifepristone, Friday filed a second emergency application to the Supreme Court, also requesting a stay of the ruling.

Mifepristone is used to induce an abortion, typically before 12 weeks into a pregnancy. Access to the abortion drug is currently uncertain. A US Appeals Court for the Fifth Circuit–the court responsible for reviewing decisions out of Kacsmaryk’s district–handed down a ruling on Wednesday that restored access to the mifepristone on a limited basis. According to that ruling, mifepristone remains available to women seeking an abortion up to seven weeks of pregnancy. A conflicting order out of a federal court in Washington state ordered the FDA to maintain the drug’s 12-week availability in 17 states and the District of Columbia. It is unclear how the two conflicting rulings interact, which may warrant US Supreme Court intervention.

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