WASHINGTON – The Supreme Court will be the next stop for a legal fight over a drug used in the nation’s most common abortion method.
A federal appeals court ruled late Wednesday that the abortion pill mifepristone can still be used for now but reduced the period of pregnancy when the drug can be taken and said it could not be dispensed by mail. The Biden administration said Thursday it will appeal.
The decision temporarily narrowed a ruling by a lower court judge in Texas that had completely blocked the Food and Drug Administration’s approval of the drug while a lawsuit over it plays out.
Mifepristone was approved for use by the Food and Drug Administration more than two decades ago. It has been used by more than 5 million women to safely end their pregnancies and today more than half of women who end a pregnancy rely on the drug, the Justice Department said.
In a separate suit brought by liberal states, a judge in Washington state ordered the FDA not to do anything that might affect the availability of mifepristone in the suing states.
A look at what has happened so far, the conflicting rulings and how the legal fight might play out:
HOW DID THE CASE GET STARTED?
The Texas suit over mifepristone was filed in Amarillo late last year. Alliance Defending Freedom, a conservative Christian legal group, represents the pill's opponents, who say the FDA's approval of mifepristone was flawed. Erin Morrow Hawley, the wife of Sen. Josh Hawley, R-Mo., is one of the lead lawyers in the case.
Why Amarillo? U.S. District Judge Matthew Kacsmaryk, who was nominated by President Donald Trump, is the sole district court judge there, ensuring that all cases filed in the West Texas city land in front of him. Since taking the bench, he has ruled against the Biden administration on several other issues, including immigration and LGBTQ protections.
In March, Kacsmaryk held a hearing in the case that lasted more than four hours and was notable in part because Kacsmaryk sought to delay publicizing that it would happen to avoid protests. His ruling came approximately three weeks later.
The Washington state ruling was issued by Spokane-based Judge Thomas O. Rice, whom President Barack Obama nominated.
WHAT IS GOING ON NOW?
The Biden administration had asked the New Orleans-based 5th U.S. Circuit Court of Appeals to prevent Kacsmaryk’s ruling from taking effect for now.
Late Wednesday, the appeals court narrowed Kacsmaryk's ruling so that the initial approval of mifepristone in 2000 is not affected, for now. But it agreed with him that changes the FDA made to relax the rules for prescribing and dispensing the drug should be put on hold. Those included expanding when the drug could be taken, from seven weeks to 10 weeks of pregnancy. The FDA also had allowed for telehealth visits to prescribe mifepristone and for the drug's delivery through the mail.
The appeals court acted by a 2-1 vote. The judges in the majority, Kurt Engelhardt and Andrew Oldham, are both Trump picks. The third judge, Catharina Haynes, was nominated by President George W. Bush. She said she would have put the lower court ruling on hold entirely for now to allow oral arguments in the case.
The Biden administration also has asked the court in Washington state to clarify its order, which the Justice Department had noted was is in “significant tension” with the initial Texas ruling. It's unclear how, now that the appeals court has ruled, the two cases interact and impact the drug's use. The government had asked for clarity by Friday, but that was before the appeals court ruled.
WHAT COULD HAPPEN NEXT?
Neither side got everything it wanted from the appeals court.
Alliance Defending Freedom, representing anti-abortion doctors and medical groups, said in a call with the media early Thursday it didn’t plan to ask the Supreme Court to intervene at this point. The Biden administration said it would.
Attorney General Merrick Garland said in a statement that the administration “strongly disagrees” with the appeals court decision.
“We will be seeking emergency relief from the Supreme Court to defend the FDA’s scientific judgment and protect Americans’ access to safe and effective reproductive care," he said.
It's unclear how the case might fare at the Supreme Court.
Conservative justices last year overturned Roe v. Wade, the landmark abortion rights case, and said states should decide whether to allow abortions within their borders. But if they hoped that their decision would remove abortion from their docket, the fight over the abortion pill shows that it’s not gone.
This time, though, while the case is about an abortion pill, the issues that the court will confront in ruling on access to the drug while the suit goes through appeals are about the rules that govern federal regulations and technicalities in the law: Did FDA take the right steps before approving the use of mifepristone and easing restrictions on its use? Do the anti-abortion groups and doctors who are suing the FDA have the legal right, or standing, to be in court? Did too much time elapse since the approval of mifepristone in 2000?
After the Supreme Court gets asked to weigh in, there is no timetable for when it might act.
The administration's appeal of Kacsmaryk's ruling will continue in the appeals court, regardless of whether all or part of his ruling takes effect in the meantime.