WASHINGTON — The Justice Department and a pharmaceutical company on Friday asked the Supreme Court to intervene in the court fight over a commonly used abortion drug in order to keep a court ruling restricting availability of the drug from taking effect this weekend.
The applications from the DOJ and Danco Laboratories, which makes the drug mifepristone, went to Justice Samuel A. Alito Jr., who hears emergency appeals from the U.S. Court of Appeals for the 5th Circuit.
The applications asked the justices to stop a ruling from the 5th Circuit that would limit the availability of the drug while an appeal plays out. The DOJ argued that the appeals court ruling would limit abortion access nationwide and conflicts with a separate ruling from a district court in Washington state to preserve the status quo for the drug’s availability in 17 states and the District of Columbia.
“If allowed to take effect, the lower courts’ orders would thwart FDA’s scientific judgment and undermine widespread reliance in a healthcare system that assumes the availability of mifepristone as an alternative to more burdensome and invasive surgical abortions,” the DOJ brief said.
Danco wrote in its application that the appeals court ruling, as well as a trial judge’s ruling against the Food and Drug Administration’s approval of mifepristone, undermined the agency’s process.
The judges at the 5th Circuit engaged in “blatant second-guessing” of experts at an administrative agency that would “inject confusion, uncertainty, and expense into the regulation of an industry that plays a foundational role in the health and safety of millions of Americans,” Danco wrote.
The drugmaker also pointed to last year’s Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which overturned the constitutional right to an abortion.
“The Court announced in Dobbs that it was returning the issue of abortion to the political branches,” Danco wrote. “If the Court denies a stay, it abandons that assurance.”
University of Texas Law School professor Steve Vladeck tweeted that the application may result in a temporary stay at the Supreme Court while a brief appeal plays out.
“There’s nowhere near a 100% chance of that happening, but I think the odds are well better than not, given the equities, that there’s an administrative stay — and that the big ruling comes next week when the full Court has had time to consider the matter a bit more carefully,” Vladeck said on Twitter.
The court fight over mifepristone spun into high gear last week when Matthew Kacsmaryk, a judge for the U.S. District Court for the Northern District of Texas, ruled to suspend the FDA’s 2000 approval of mifepristone. Mifepristone is one of the two drugs used in miscarriage management and medication abortion, along with misoprostol, and is used in roughly half of all abortion care.
Kacsmaryk’s ruling would go into effect on Saturday.
The U.S. District Court of Appeals for the 5th Circuit on Wednesday ruled to keep mifepristone on the market past Saturday, but with limitations. The 5th Circuit’s ruling put the suspension of the FDA’s approval of the drug on hold, but rolled back the agency’s later revisions to that approval, meaning patients could only access the drug up to seven weeks of pregnancy and cannot access the drug by mail.
