US supreme court justice Samuel Alito has temporarily blocked lower court rulings which would have imposed temporary restrictions on the abortion pill mifepristone that were set to go into effect this weekend.
Alito imposed a five-day stay after a ruling by a conservative federal judge in Texas, parts of which were then upheld by a conservative appellate court based in New Orleans. For now, access to medication abortion – the most common method of pregnancy termination in the US – is unchanged until at least Wednesday 19 April.
The pause gives the high court more time to deliberate the restrictions imposed by the lower court. The Department of Justice and the drug’s manufacturer, Danco, had asked the supreme court to intervene to stop those restrictions earlier on Friday.
The Food and Drug Administration (FDA) approved mifepristone in 2000. The US fifth circuit court of appeal decision, upholding parts of the ruling by federal judge Matthew Kacsmaryk of Texas, had rolled back action taken by the FDA after 2016 to expand access to the drug.
The restrictions that were set to take effect this weekend include limiting mifepristone’s use after seven weeks of pregnancy – it is currently approved until 10 weeks – and banning the delivery of the drug by mail.
The stay is not considered necessarily indicative of how the court, which is dominated by a conservative supermajority, may ultimately rule on the overall merits of the abortion drug case. Alito wrote the landmark US supreme court ruling last year that eliminated the federal right to abortion, which had been established with the Roe v Wade decision in 1973. Last year’s ruling left it up to individual states to decide the legality of abortion within their boundaries.
The justice department wrote in its appeal to the high court on Friday that the restrictions would create “profound disruption and grave harm”.
“If allowed to take effect, the lower courts’ orders would upend the regulatory regime for mifepristone, with sweeping consequences for the pharmaceutical industry, women who need access to the drug, and FDA’s ability to implement its statutory authority,” wrote Elizabeth Prelogar, the US solicitor general.
The supreme court was widely expected to take up the case, in part because of a ruling from a Washington state district court that conflicts with the decisions out of Texas and Louisiana. The Washington ruling orders the FDA to maintain the status quo for the drug in 17 states and the District of Columbia. The FDA faces an “obvious threat of irreparable harm” from conflicting court orders, the justice department writes.
Danco, the mifepristone drug manufacturer, also appealed to the supreme court for intervention on Friday, pointing to the “regulatory chaos” that would be unleashed if limitations on the drug went into effect. The result of dueling federal court orders creates an “untenable limbo, for Danco, for providers, for women and for healthcare systems all trying to navigate these uncharted waters”, the drug company wrote, arguing that casting doubt on the FDA approvals process would create a dangerous precedent for the drug market broadly.
“This is a dark day for public health, especially for reproductive rights and the reliance on science and medical expertise to guide decisions about what drugs are safe and effective and should be available to patients,” said Abby Long, Danco’s director of public affairs, in a statement.
If the supreme court does not act, wrote justice department lawyers, the “resulting disruption would deny women lawful access to a drug FDA deemed a safe and effective alternative to invasive surgical abortion”.
