The Biden administration and a drug manufacturer asked the Supreme Court on Friday to preserve access to an abortion drug free from restrictions imposed by lower court rulings, while a legal fight continues.
The Justice Department and Danco Laboratories both warned of “regulatory chaos” and harm to women if the high court doesn’t block an appeals court ruling in a case from Texas that had the effect of tightening Food and Drug Administration rules under which the drug, mifepristone, can be prescribed and dispensed.
The new limits would take effect Saturday unless the court acts before then.
“This application concerns unprecedented lower court orders countermanding FDA’s scientific judgment and unleashing regulatory chaos by suspending the existing FDA-approved conditions of use for mifepristone,” Solicitor General Elizabeth Prelogar, the Biden administration’s top Supreme Court lawyer, wrote Friday, less than two days after the appellate ruling.
A lawyer for the anti-abortion doctors and medical organizations suing over mifepristone said the justices should reject the drugmaker’s and the administration’s pleas and allow the appeals court-ordered changes to take effect.
The fight over mifepristone lands at the Supreme Court less than a year after conservative justices reversed Roe v. Wade and allowed more than a dozen states to effectively ban abortion outright.
The justices are being asked for a temporary order to keep in place Food and Drug Administration regulations governing mifepristone. Such an order would give them time to more fully consider each side’s arguments without the pressure of a deadline.
The Biden administration and Danco, which is based in New York, also want a more lasting order that would keep the current rules in place as long as the legal fight over mifepristone continues. As a fallback, they asked the court to take up the issue, hear arguments and decide by early summer a legal challenge to mifepristone that anti-abortion doctors and medical organizations filed last year.
The court rarely acts so quickly to grant full review of cases before at least one appeals court has thoroughly examined the legal issues involved.
A ruling from the 5th U.S. Circuit Court of Appeals late Wednesday would prevent the pill, used in the most common abortion method, from being mailed or prescribed without an in-person visit to a doctor. It also would withdraw the Food and Drug Administration’s approval of mifepristone for use beyond the seventh week of pregnancy. The FDA says it’s safe through 10 weeks.
