WASHINGTON — The Supreme Court on Wednesday delayed making a decision that could prevent patients from obtaining the abortion pill mifepristone in the mail by extending a temporary block on a lower court ruling.
In a brief order issued by Justice Samuel Alito, the court said the hold, first announced last week, would be extended two more days, until just before midnight Friday. The announcement says nothing about how the court will ultimately resolve the case, although the delay could indicate there is division among the nine justices.
The decision means that, at least for now, women can still obtain mifepristone by mail as the legal battle continues.
The Supreme Court is weighing whether to more permanently block a decision issued by Texas-based U.S. District Judge Matthew Kacsmaryk that handed a sweeping victory to abortion opponents. Both the Justice Department and Danco Laboratories, which makes the brand version of mifepristone, Mifeprex, had asked the court to immediately step in.
They said the court should immediately block Kacsmaryk’s April 7 ruling in full while it considers what steps to take.
Last week, the 5th U.S. Circuit Court of Appeals gave the Food and Drug Administration a partial victory by declining to suspend its original approval of mifepristone in 2000, which would have made distributing the drug unlawful.
But the court allowed separate elements of Kacsmaryk’s decision to remain in place, including a prohibition on obtaining the drug by mail, which is what the Justice Department is contesting at the Supreme Court. The lower court ruling, if it is left in effect, would also impose other restrictions and suspend approval of a generic version of the drug made by GenBioPro.
To win a more permanent block on the lower court ruling, the Biden administration would need to win the votes of at least five of the nine justices on the court, which last summer in a 5-4 ruling overturned the landmark Roe v. Wade ruling, which said women nationwide have the right to obtain abortions.
The new case raises different legal issues about the FDA’s process for approving drugs, but it will nevertheless test the court’s pledge last year that it would leave abortion policy to the states and the federal government.
A federal judge in Washington state added a further wrinkle when he issued a preliminary injunction this month in a different case barring the FDA from “altering the status quo and rights as it relates to the availability of mifepristone.”
That ruling, also issued April 7, applies only to 17 liberal-leaning states and Washington, D.C., which filed a lawsuit in February challenging the FDA’s regulations over the drug.
Separately, GenBioPro sued the FDA on Wednesday, claiming its due process rights would be violated if there is an abrupt change to the regulatory scheme.
While a different drug, misoprostol, can be used alone for abortions, experts have said it is not as effective in terminating pregnancies as it is when it is administered in tandem with mifepristone.
As a result of the Supreme Court’s decision to overturn Roe v. Wade, various conservative states have enacted tough abortion restrictions that already make it difficult, if not impossible, for women to terminate pregnancies, whether by accessing pills or undergoing surgical procedures. Abortion is effectively banned altogether in 12 states, according to Guttmacher.