Last week, mifepristone — one of the two drugs used in the most common medication abortion regimen — was on the verge of being banned nationwide due to the actions of a federal judge. Such a ban would effectively halt legal access to medication abortions — which make up more than half of all abortions overall performed in the United States according to the Guttmacher Institute.
Then on Friday, U.S. Supreme Justice Samuel Alito issued a temporary order that blocked the impending restrictions from taking effect. Reproductive rights advocates cheered the order, which put the extreme ruling on hold and ensured access to the drug for now. Yet celebrating Alito's order as a victory for reproductive rights would be premature, as Justice Alito merely put the restrictions on hold until April 19 at midnight.
Does this mean that medication abortion access remains threatened, and that a mifepristone ban could be enacted in a few short days?
Salon spoke to a legal expert who said that such a situation is possible, but "not likely."
"I don't think the plaintiffs are going to ask for reinstatement of Judge Kacsmaryk's opinion, but I don't know for sure," David S. Cohen, a professor of law at Drexel Kline's School of Law, told Salon. "We'll see what they say."
Back on April 7, Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas imposed a nationwide injunction revoking the U.S. Food and Drug Administration's (FDA) regulatory approval of mifepristone. The highly anticipated decision stemmed from a lawsuit filed last November by the Alliance for Hippocratic Medicine, an anti-abortion group which claims that the longstanding approval of mifepristone should be revoked because the FDA initial approval was allegedly based on incomplete data. The anti-abortion organization Alliance for Hippocratic Medicine claims that the FDA failed to protect women when it approved the drug over 20 years ago. Clinical trials, researchers and doctors all concur that the drug is safe, and legal experts have questioned whether the court even has the right to question the regulatory decisions of an independent agency like the FDA.
As experts have pointed out, Kacsmaryk's brief was littered with both pseudoscience and untruths regarding abortion. Kacsmaryk's ruling was set to go into effect in seven days after it was decreed, which allowed time to appeal the decision.
As expected, a few days later the US Court of Appeals for the Fifth Circuit partially overturned Kacsmaryk's decision — meaning that it concluded the plaintiffs' challenge to the FDA's process in 2000 was unconstitutional. However, Kacsmaryk's ruling didn't touch on the part of the ruling that struck down the FDA's 2016 update to the drug's usage, which included that it was safe to use up to 10 weeks of pregnancy.
The ruling was then blocked by an appeals court on April 13. Danco Laboratories, the maker of Mifeprex — which is a brand version of mifepristone — filed a similar appeal. A day later, the Biden administration filed an emergency application requesting the U.S. Supreme Court to intervene, which is what led up to Alito's statement.
Cohen told Salon that it is unclear what the conservative-majority justices will do now, but he sees the case play out in one of a few different ways.
"We're waiting to see what the Supreme Court does," he said. He explained a few scenarios: Cohen said they could "lift the stay and let the Fifth Circuit decision take effect," adding that, in this case, mifepristone would still be approved but could be subjected to all the restrictions that were in place in 2016. "With the complication being with the states that signed on to the Washington lawsuit, and we don't know if the Supreme Court is going to say anything about that because it technically doesn't have that case before it."
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As Cohen alluded to, a lawsuit in Washington state filed by 18 Democratic attorneys general against the Food and Drug Administration challenged the agency's authority to regulate mifepristone — which could protect access to the drug in those states in the event that the FDA approval is taken away.
"Then you've got the other side where the Supreme Court could say, 'we are going to keep the stay in place while the Fifth Circuit appeal plays out,'" Cohen said. "They could say, 'we're going to keep the stay in place for the entire litigation and let the case go back to the district court, to go to the full trial.'"
The Supreme Court could also not take the case, Cohen said. One concern is that access to mifepristone could be curtailed as this plays out, which was also noted in the Danco Laboratories filing.
"Even the Fifth Circuit's decision could result in mifepristone being off the market for several months because you have to spend the time relabeling it and that takes time," Cohen said. "It's not a ban on mifepristone, but it could have that effect and be unavailable."
Seema Mohapatra, a professor of law at Southern Methodist University Dedman School of Law, told Salon she expects before Wednesday the country will get more clarification from the Supreme Court.
"The Supreme Court has been notorious for making decisions without releasing any kind of an opinion, and hopefully that's not what would happen," Mohapatra said. "Until Wednesday night, the status quo is maintained."
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