By: Ahmad S. Dagher
WASHINGTON, D.C. – On Tuesday, Jan. 23, the Biden Administration urged the Supreme Court to overrule a prior decision made by the 5th U.S. Circuit Court of Appeals that eliminated broad access to a widely used abortion pill, mifepristone.
In completing a written brief on the issue, the Justice Department has now become involved in a controversial legal fight between a group of medical professionals and the manufacturers of the pill, Danco Laboratories.
The group of doctors, represented by the conservative legal group Alliance Defending Freedom, seeks to overturn a series of actions taken by the FDA since 2016.
These actions had a variety of effects: they allowed for the extension of the period during which mifepristone could be taken (from 7 to 10 weeks), the reduction of the number of in-person visits required, the increase in the types of medical professionals that could prescribe the drug, and the new ability for patients to receive mifepristone through the mail.
Solicitor General Elizabeth Prelogar, representing the Justice Department, wrote in her brief that in the case that the 5th Circuit’s decision is kept in place, “grave harms on the government, mifepristone’s sponsors, women seeking medication abortions, and the public” would be seen. Prelogar added, “for many patients, mifepristone is the best method to lawfully terminate their early pregnancies.”
Another similar appeal was filed recently by mifepristone manufacturer Danco Laboratories.
The challengers, on the other hand, argued that the FDA’s actions were flawed, in part due to their being dismissive of safety risks to women. They argued that in the case that patients who took mifepristone end up in need of emergency attention, anti-abortion doctors might be forced to deliver medical care to them, and would thus be involved in a medication abortion.
Prelogar disagreed, asserting that “…although mifepristone has been on the market for decades, respondents cannot identify even a single case where any of their members has been forced to provide such care.”
The Supreme Court previously intervened in this case, in April of 2023, rejecting a decision by a Texas U.S. District Judge which had invalidated the FDA’s original approval of the drug back in 2000.
Prelogar fears that if the Supreme Court, with its 6-3 conservative majority, upholds the 5th Circuit’s decision, it would shake the authority of the FDA, as this is the first time a court has ever doubted its “expert judgment” in approving safe and effective drugs.
This December, the Justices announced that they would be hearing the case sometime this term. The set date, however, has yet to be decided.
